West Virginia v. B. P. J. · ¶159

None of this is to suggest what the eventual outcome of this litigation would have been, or even should have been, had the majority allowed the courts below to make the missing factual determinations and had those courts correctly applied heightened scrutiny with the benefit of those facts. West Virginia may well have satisfied its burden and seen its ban upheld. The point, rather, is that this Court’s equal protection precedents require a very different approach to B. P. J.’s claim than the one the majority follows today.

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