(dissenting) —
"When our rulers worry about our health, we should worry about our liberty.’’[23]
The trial court, and the majority here, analyze Mr. Seeley’s claim under the privileges and immunities clause of article I, section 12, of the Washington Constitution24 as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution.25 Notwith*815standing, I prefer the due process clause of the Fourteenth Amendment, as argued by amicus American Civil Liberties Union of Washington Foundation because the problem is how the government treats Mr. Seeley, not that Mr. Seeley is treated differently from others.26 Equalizing injustice does not cure it. I dissent.
This dissent relies primarily on recent Supreme Court precedent in two abortion cases, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) and Planned Parenthood v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), wherein the Supreme Court majority credited the state’s interest to preserve the life of the fetus as "important” but nevertheless insufficient to prohibit the practice when measured against the liberty interests of the mother. The majority cannot distinguish these cases. If the state cannot prohibit abortions consistent with due process, it can hardly constitutionally prohibit drug use as its interest to do so is arguably much less important. I further rely on Ravin v. State, 537 P.2d 494 (Alaska 1975) which construes a comparable provision in the Alaska constitution to immunize persons who smoke marijuana in the privacy of their home from criminal prosecutions, as well as Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997), which rejects the claim that due process protects the asserted right of physician-assisted suicide however still provides much comfort to Mr. Seeley, who claims due pro*816cess protection against "arbitrary impositions and purposeless restraints.”27
While the majority identifies Mr. Seeley as presenting his case pro se this dissent notes for the record Mr. Seeley is a most able attorney as well. On this occasion he comes to court on his own behalf to argue a matter of a very personal nature directly pertaining to physical pain which only he can experience. By contrast considerations of public need and necessity are at most lawyer-like abstractions. Refusing palliative relief to a dying man may please the politicians yet does great damage to Seeley’s liberty and nothing for his health.
As to Mr. Seeley’s claim that inhalation of leaf form marijuana subsequent to chemotherapy relieves symptoms of nausea, the State admitted during oral argument it "cannot dispute Mr. Seeley’s beliefs about marijuana and how it affects him . . . .” Oral Argument Tape (Sept. 25, 1996). Seeley’s medical doctor filed an affidavit attesting that in his medical judgment Mr. Seeley would benefit from the use of marijuana.28
But the State purports to justify this total prohibition of marijuana by taking a "larger focus.” It asserts absolute criminal prohibition, even as applied to Mr. Seeley, promotes legitimate governmental objectives associated with discouraging drug abuse and otherwise protecting the citizenry from itself by curtailing what it alleges to be the unknown consequences associated with the inhalation of marijuana. But these reasons—even if valid—have no particular application to Seeley who is terminally ill, admittedly finds relief in smoking marijuana, and seeks to follow the advice of his own physician who attests marijuana is medically advisable. From the perspective of *817one writhing in nausea on the tiled floor of an oncological recovery room, the State’s justifications to withhold the blessings of relief are more sophomoric than substantive.29
The text of the Fourteenth Amendment’s due process clause mandates no state shall "deprive any person of life, liberty, or property, without due process of law.” The clause views the matter from the individual’s perspective, not the State’s, as it poses the rule in terms of "any person” who might suffer the deprivation.30 Its remedy is simple, and absolute: prohibit the deprivation absent that process which is due.
That the process due extends beyond matters of mere procedure is thoroughly settled. Justice Brandéis explained 70 years ago, "[djespite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the federal Constitution from invasion by the states.” Whitney v. California, 274 U.S. 357, 373, 47 S. Ct. 641, 647, 71 L. Ed. 1095 (1927) (Bran-déis, J., concurring). See also Planned Parenthood v. Casey, 505 U.S. 833, 846, 851, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (while the clause appears to address procedure alone, the liberty protections referred to in the clause include a substantive component " 'barring certain government actions regardless of the fairness of the procedures used to implement them’ ”) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)).
It may also be reasonably stated, without fear of contradiction, that over the last century the clause has regained *818much of its vigor as a substantive limitation on state power. An early test for judicial implementation of the clause is summarized in Lawton v. Steele, 152 U.S. 133, 137, 14 S. Ct. 499, 501, 38 L. Ed. 385 (1894). There the Supreme Court noted that a legislative "determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts” {id. at 137) and emphasized the need to protect against governmental acts "involving an unnecessary invasion of [ ] rights” and infringement upon individual acts which are "harmless in themselves, and which might be carried on without detriment to the public interests.” Id. at 138.
To justify the state in . . . interposing its authority in behalf of the public, it must appear—First, that the interests of the public . . . require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.
Id. at 137.
If the challenged governmental act fails any aspect of the test it is an invalid exercise of the police power and an unconstitutional "public encroachment upon private interests.” Goldblatt v. Town of Hempstead, 369 U.S. 590, 594, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962) ("The classic statement of the rule in Lawton v. Steele [ ] is still valid today . . . .”).
The Washington Supreme Court has repeatedly followed Lawton. See State v. Brown, 37 Wash. 97, 101, 79 P. 635 (1905) (following Lawton this court struck down a state law requiring dental offices to be owned by dentists on the ground such law was not necessary to further any valid state objective), overruled in part by State v. Boren, 36 Wn.2d 522, 219 P.2d 566, (1950); City of Seattle v. Proctor, 183 Wash. 293, 298, 48 P.2d 238 (1935) ("in order to sustain •legislative interference with the business of the citizen, the court must be able to see that the act tends in some degree to promote the public health, morals, safety, or *819welfare. In every case the means adopted must be reasonably necessary to accomplish that purpose, and should not be unduly oppressive upon the citizen. The determination of the Legislature as to these matters is not conclusive, but is subject to the supervision of the courts, and, if the above prerequisites are wanting, a law imposing unreasonable restrictions on a lawful occupation will be held void.”); Cougar Bus. Owners Ass’n v. State, 97 Wn.2d 466, 477, 647 P.2d 481 (1982) ("The classic statement of the rule in Lawton v. Steele [ ], is still valid today . . . .”), cert. denied, 459 U.S. 971, 103 S. Ct. 301, 74 L. Ed. 2d 283 (1982); Orion Corp. v. State, 109 Wn.2d 621, 646-47, 747 P.2d 1062 (1987) ("Under the classic, 3-pronged, substantive due process test of reasonableness, a police power action must be reasonably necessary to serve a legitimate state interest.”), cert. denied, 486 U.S. 1022, 108 S. Ct. 1996, 100 L. Ed. 2d 227 (1988); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765 ($219,000 fee levied against an individual landowner violates substantive due process), cert. denied, 506 U.S. 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598 (1992); Guimont v. Clarke, 121 Wn.2d 586, 609, 854 P.2d 1 (1993) (law requiring landowner to pay $7,500 in relocation assistance for each tenant violates substantive due process under Lawton test), cert. denied, 510 U.S. 1176, 114 S. Ct. 1216, 127 L. Ed. 2d 563 (1994); Rivett v. City of Tacoma, 123 Wn.2d 573, 870 P.2d 299 (1994) (Tacoma ordinance requiring indemnification for sidewalk injuries from abutting landowners violates substantive due process); Robinson v. City of Seattle, 119 Wn.2d 34, 830 P.2d 318 (tenant relocation assistance payments unduly oppressed property owner under Lawton test), cert. denied, 506 U.S. 1028, 113 S. Ct. 676, 121 L. Ed. 2d 598 (1992).
Lawton is particularly applicable here as Seeley asserts his use of medicinal marijuana to treat the symptoms of chemotherapy greatly benefits him while at the same time is "harmless in [itself]” and "might be carried on without detriment to the public interests.” Lawton, 152 U.S. at 138. Although in this jurisdiction many applications of the Lawton rule pertain to concerns associated with the *820ownership and use of real property, we should recall the classical formulation of such matters provides that a man’s first and most fundamental property interest is in his person (James Madison, Essay on Property for the National Gazette (Mar. 27, 1792), in 14 The Papers of James Madison 266-68 (Robert A. Rutland et al. eds., 1983)) (one’s property interest extends not only to one’s "land, or merchandise, or money” but also to "the safety and liberty of his person . . . .”). And efforts to dichotomize interests of life, liberty, and property lack historical justification. See Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 1409 n.11 (9th Cir. 1989) ("Freedoms granted by the bill of rights were cut from a single constitutional cloth and [were] never dichotomized into personal and property.”) (quoting Norman Karlin, Back to the Future: From Nollan to Lochner, 17 Sw. U. L. Rev. 627, 637-38 (1988)).
Although Planned Parenthood v. Casey, 505 U.S. 833, 876, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) did not cite Lawton, its analysis proceeds on the same track: do the interests of the public require such interference? I find the analysis in Casey as well as its antecedent, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) wholly dispositive in Mr. Seeley’s favor.
Let us recall both Roe and Casey, like the case before us, focus upon an individual’s claim that the State lacks sufficient justification to dictate to a woman matters associated with her bodily integrity, abortion specifically. A majority in Roe recognized that the State "may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” Roe, 410 U.S. at 154. Similarly, a majority in Casey recognized these same legitimate interests, yet held "legitimate interests are not enough.” Casey, 505 U.S. at 932 (Blackmun, J., concurring).
As a general proposition I posit if the state’s interest to regulate abortion in the context of Casey and Roe is insufficient, the State’s asserted interest to criminalize Mr. *821Seeley’s ingestion of marijuana to ease the effects of nausea is even less so.
Casey begins with favorable reference to the second Justice Harlan’s dissent in Poe v. Ullman, 367 U.S. 497, 543, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961) (Harlan, J., dissenting), which discusses the liberty referenced in the due process clause: "This 'liberty’ is not a series of isolated points pricked out in terms of the taking of property, the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”31 Thus the majority in Casey rejected the "rational relation” test upon which our majority hangs its hat. Majority at 808 n.20. Citing numerous examples, Casey focused directly on matters "involving the most intimate and personal choices . . . central to personal dignity and autonomy” which are "central to the liberty protected by the Fourteenth Amendment,” 505 U.S. at 851, and then states:
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Casey, 505 U.S. at 851.
Apparently the Supreme Court opines personal choices essential to personal dignity and autonomy, even when those choices are at odds with legitimate state interests, are constitutionally privileged. According to Casey, these considerations have application to abortion because natural childbirth involves "pain that only she must bear” as well as "suffering . . . intimate and personal . . . .” Ca*822sey, 505 U.S. at 852. The term "personal” is repeated throughout the course of the opinion, which also characterizes Roe as an example of a rule "of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection.” Casey, 505 U.S. at 857. Turning aside a challenge to overrule Roe, Casey "decided that any regulation touching upon the abortion decision must survive strict scrutiny, to be sustained only if drawn in narrow terms to further a compelling state interest.” Casey, 505 U.S. at 871.
Were we to restrict Roe and Casey to a specific narrow holding on abortion we would rob these decisions of their claimed basis in the fundamental principles inherent in substantive due process. Scholars (sometimes critically) argue the statements contained in Roe and Casey "apply to nonrights such as a person’s desire to consume heroin, or not to wear a motorcycle helmet, as persuasively as they do to procreational interests.” David Crump, How Do the Courts Really Discover Unenumerated Fundamental Rights? Cataloguing the Methods of Judicial Alchemy, 19 Harv. J.L. & Pub. Pol’y 795, 894 n.446 (1996).
I would apply the aforementioned analysis set forth in Lawton, Roe, and Casey to the facts at hand in the following manner.
Public v. Private Interests
First, Lawton asks whether the public interest justifies such interference with the individual. Roe and Casey clarify that the more personal the individual interest, the more that interest concerns bodily autonomy, the more that interest centers on purely personal concerns such as the avoidance of pain through a medical procedure, the less likely the governmental restraint will be upheld. The rationale behind Glucksberg is much the same. An absolute criminal bar to the use of marijuana includes specifically personal concerns of bodily autonomy coupled with the personal desire to mitigate if not alleviate need*823less physical suffering. These are grave interests which favor the individual.
On the other hand, the claimed interests of the State are insubstantial. There is little relation between the ingestion of marijuana by Mr. Seeley and the specter of drug abuse by others, other than the desire to make a political statement that marijuana in leaf form has no legitimate use under any conceivable circumstance.32 But the government’s argument that the ingestion of marijuana *824may have uncertain medical consequences seems unpersuasive when, at the same time, the government concedes that it cannot dispute Mr. Seeley’s testimony about how its ingestion affects him, the tragic medical fact that he is terminally ill, nor the fact that Seeley’s doctor states on the record it is in Seeley’s interest to use marijuana for medical reasons.
To emphasize this is the necessary constitutional result I would also find Ravin v. State, 537 P.2d 494 (Alaska 1975) persuasive. Ravin invalidated a similar Alaska statute insofar as it prohibited one from possessing and smoking marijuana in his own home. Ravin identified "unwanted governmental intrusions into one’s privacy,” 537 P.2d at 499, as well as the "right of personal autonomy in relation to choices affecting an individual’s personal life.” Id. at 500. Considering the recreational use of marijuana in one’s home, a less compelling circumstance than what we have here, the court emphasized "[t]he experiences generated by use of marijuana are mental in nature . . . and thus among the most personal and private experiences possible. So long as conduct does not produce detrimental results, the right of privacy protects the individual’s conduct designed to affect these inner areas of the personality. . . . and so the statute infringed on the right of personal autonomy.” Ravin, 537 P.2d at 501. The Alaska court also reflected upon the opinion of Justice T. G. Ka-vanagh in People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878, 896 (1972) which recited " 'Big brother’ cannot, in the name of Public health, dictate to anyone what he can eat or drink or smoke in the Privacy of his own home.” See also Suenram v. Society Valley Hosp., 155 N.J. Super. 593, 383 A.2d 143 (1977) (recognizing constitutional privacy right of informed cancer patient to take laetrile).
Necessary Means
Even assuming the interests of the public are sufficient to require such interference, Lawton further requires the means be reasonably necessary to accomplish the purpose. *825Lawton, 152 U.S. at 138. But the means employed here, total and absolute prohibition, are anything but that. Under our statute marijuana in leaf form is not even available through medical prescription, unlike PCP angel dust, cocaine, opium, and morphine.33 Our statute is an absolute prohibition against physician prescription, no matter what the learned medical judgment of our state-licensed practitioner. It forbids the physician to practice his healing arts and denies the patient benefit of professional care.34 Such is the situation notwithstanding the opinion widely held by physicians that medicinal marijuana is safe and efficacious and should be used for a variety of ailments. See Harvard Professor Lester Grinspoon & James B. Bakalar, Marihuana, the Forbidden Medicine (1993).
A recent study conducted amongst the members of the Washington State Medical Association found 80 percent of its doctors favored controlled availability of marijuana for medical purposes. CP at 561, In re Marijuana Rescheduling Pet., Opinion & Recommended Ruling, Findings of Fact, Conclusions of Law & Decision of AL J at 26 (Dep’t Justice, Drug Enforcement Admin., 1988) (No. 86-22) (Young Opinion). Another recent study found that 44 percent of oncologists surveyed had already recommended the illegal use of marijuana to at least one patient and half would prescribe it to other patients if doing so were legal. R. Doblin & M.A.R. Kleiman, Marijuana as Anti-emetic Medicine: A Survey of Oncologists’ Attitudes and Experiences, J. of Clinical Oncology 9 (1991) 1275-80 n.292 (cited in Grin-*826spoon & Bakalar, supra at 39). Individuals anecdotally praise the successful use of medical marijuana for a variety of ailments. California and Arizona voters recently approved physician prescription of marijuana in their states. Derrick Augustus Carter, Knight in the Duel with Death: Physician Assisted Suicide and the Medical Necessity Defense, 41 Vill. L. Rev. 663, 723 (1996). The New England Journal of Medicine, the premier authority in this country on medical developments, editorialized in January 1997 against prohibition. Jerome Kassirer, editorial, Federal Foolishness and Marijuana, 336 New Eng. J. Med. 366 (Jan. 30, 1997). After cataloging the medical benefits, the journal’s editor opined government authorities are "out of step with the public” and the medical community and urged the government "to rescind their prohibition of the medical use of marijuana for seriously ill patients and allow physicians to decide which patients to treat.” Id. The editorial concluded that depriving seriously ill patients medical marijuana is "inhumane.” Id.
A well-known case documents how the government has approached the issue. CP 533-603 (Young Opinion, supra at 1-68). Pursuant to federal law the Drug Enforcement Administration must reclassify any Schedule I drug if a petitioner can demonstrate an accepted medical use. In 1972 the National Organization for the Reform of Marijuana Laws (NORML) filed such a petition. Grinspoon & Bakalar, supra at 13. Three times the agency refused to process the petition and three times the federal circuit court ordered the agency to consider the petition on its merits. Fourteen years later, in 1986, the DEA finally directed its administrative law judge to hear the case. Judge Francis Young took evidence at various hearings for two years and issued a 68-page opinion in 1988. Judge Young unambiguously recommended making marijuana medically available and concluded:
The overwhelming preponderance of the evidence in this record establishes that marijuana has a currently accepted medical use in treatment in the United States for nausea and *827vomiting resulting from chemotherapy treatments in some cancer patients. To conclude otherwise, on this record, would be unreasonable, arbitrary and capricious.
CP at 569, Young Opinion at 34.
Notwithstanding Judge Young’s thoroughly documented opinion, the head of the Drug Enforcement Administration denied the petition for rescheduling, relying upon "common sense” that there is no medical use of marijuana. I recite these facts as they are pertinent to the second prong of the Lawton test insofar as they all suggest availability of leaf marijuana by prescription as a means by which the government could accomplish some of its alleged objectives while making the substance available to those with a particular medical need; although I hasten to add availability only through prescription may not be sufficient to overcome objections raised under the first prong of the test. Compare Ravin v. State, 537 P.2d 494 (Alaska 1975) (home marijuana use for recreational as well as medical use protected).
Unduly Oppressive Upon Individuals
The third prong of Lawton requires the result not be unduly oppressive upon individuals. I find our criminal prohibition on marijuana unduly oppressive in every sense of the word. Our court has previously invalidated state and local legislative acts on precisely this ground in the context of rental housing relocation payments (Robinson v. City of Seattle), demolition fees (Sintra v. City of Seattle), and trailer park relocation fees (Guimont v. State). This prong of the rule, consistently applied, would require no less in the case at bar. I doubt many individuals would require Mr. Seeley to suffer extreme nausea in lieu of the relief he could obtain from a marijuana cigarette. But it seems the government is endowed with neither the compassion nor mercy possessed by the ordinary citizen. However, insofar as the Fourteenth Amendment prohibits the State from depriving anyone of their liberty absent due process, it is the duty of the judicial branch of govern*828ment to save and protect "any person,” not the least of whom is Ralph Seeley, from bearing the unduly oppressive weight of government action upon his weakened shoulders.
Reply to Majority’s Due Process Analysis
The majority’s discussion of the due process clause is confined to but a single footnote. Majority at 808 n.20. Two propositions are there tendered: (1) due process is satisfied if a total prohibition of marijuana is "rationally related” to accomplishing a legitimate state interest and (2) a number of cases from other jurisdictions have held that such a prohibition is indeed "rational.”
a. Rational Relationship Test Rejected
Apparently the majority opts for an extremely deferential standard whereby the law is upheld if the court can even imagine any hypothetical set of facts "presumed to exist” under which the Legislature might have constitutionally enacted the law. See State’s Br. in Resp. to Br. of ACLU at 8. This test, however, has been inconsistently utilized by the United States Supreme Court, wherein it was abandoned in Casey, questioned in Glucksberg, obviously out of step with Lawton, and makes no sense in this case.
It is true the United States Supreme Court has sometimes applied such a two-tiered approach to due process claims. If it labels the liberty interest at stake "fundamental” it opines the State cannot regulate same absent a narrowly tailored compelling state interest. See Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). If, on the other hand, the individual interest were found to be less than fundamental,35 the state action will be upheld unless there is no imaginable rational basis to sup*829port it.36 Compare, e.g., Bowers v. Hardwick, 478 U.S. 186, 196, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986) (popular view that homosexuality is immoral provides sufficient rational basis for anti-sodomy laws). But in reality simply labeling the interest has proven dispositive because strict scrutiny is virtually impossible to pass while rational basis is virtually impossible to fail. Francis S. Chlapowski, The Constitutional Protection of Informational Privacy, 71 B.U. L. Rev. 133, 145 (1991) ("[W]hen the question of whether a right is fundamental is raised, the preliminary finding of a 'fundamental’ interest is usually outcome-determinative.”). See Russell W. Galloway, Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. Rev. 625, 645 (1992) (rational basis "is so minimal” that "[t]he outcome is a foregone conclusion. . . . The test involves 'minimal scrutiny in theory and virtually none in fact.’ ”) (citation omitted); see also Laurence H. Tribe, American Constitutional Law 343 (2d ed. 1988) (hereinafter Tribe, American Constitutional Law) (referring to rational basis as imposing "relatively toothless limits” on the state).
This two-tiered classification system of strict scrutiny and rational basis has proven problematic and subject to criticism because it shoehorns what in reality exists on a continuum into absolute but artificial categories. Compare Casey, 505 U.S. at 851 (citing Poe, 367 U.S. at 543 which analyzes "liberty interests upon 'a rational continuum which, broadly speaking, includes a freedom from all substantive arbitrary impositions and purposeless restraints. ’ ”). While the 14th Amendment simply references "liberty,” the question posed by the majority is whether there is a "fundamental interest” to smoke marijuana. I disagree with this formulation because the constitution speaks of principles, not specifics. Freedom from needless suffering; the right to individual autonomy; the right to bodily integrity; the right to physician treatment and *830medical assistance; and freedom from arbitrary, privacy-invading restraints are the principles applicable here.
Better we should question the predicate which supposedly justifies state intervention in the first place than shift the burden to the private citizen to show why he should be free—which is, or should be, the natural state in a free society. Compare Youngberg v. Romeo, 457 U.S. 307, 321, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) ("Accordingly, whether respondent’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.”); Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 278-79, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990) (an individual’s "liberty interests” must be balanced against the state’s interest in regulation); Foucha v. Louisiana, 504 U.S. 71, 79-80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (balancing an individual’s liberty interest in remaining free from bodily restraint against the state’s punitive interest in restraining him); and Glucksberg, 117 S. Ct. 2258, 117 S. Ct. 2302 (1997) (concurring opinions appear to embrace balancing test and reject rational relation test). "The purpose of the Constitution and Bill of Rights, unlike more recent models promoting a welfare state, was to take government off the backs of people.” Schneider v. Smith, 390 U.S. 17, 25, 88 S. Ct. 682, 687, 19 L. Ed. 2d 799 (1968).37
Planned Parenthood v. Casey, 505 U.S. 833, 876, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) held the balancing approach was superior to the two-tiered approach because the "liberty” protected by the Fourteenth Amendment must be viewed on a continuum which balances the citizen’s need for freedom of action against the state’s justification for intervention. Lawton is much the same since under the first prong of Lawton the court must *831determine "the interests of the public [that] . . . require such interference.” Lawton, 152 U.S. at 137.
Properly viewed, under the rational continuum test, Seeley prevails because his need is personal and great, whereas the state’s interest to prevent the conduct is small, if not pretextual.
Even were we to adhere to the majority’s two-tiered approach, I would nevertheless reject the majority’s claim that Seeley’s interest to inhale or ingest any substance to relieve his agony is in any degree less fundamental than any other interest judicially recognized as such.38 Offensive, in the extreme, is the proposition that the government may restrict ingestion of a substance found by a licensed physician to be medically advisable to comfort a terminal patient. Such right is as fundamental as any. Compare, e.g., Cruzan (fundamental right to refuse life support by exercising personal control of medical treatment).
Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997) also supports this view. While Glucksberg unanimously rejected a claimed constitutional right to physician-assisted suicide because of the overriding state interest to preserve human life, no single opinion represented an unqualified majority. Justice O’Connor, and several other justices comprising a majority of five, wrote separately to emphasize their concurrence was conditioned upon the existence of laws insuring that terminal patients may access pain relief. See Glucks-berg, at 2303 (O’Connor, J., concurring) ("[A] patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to allevi*832ate that suffering, even to the point of causing unconsciousness and hastening death.”). Similarly, Justice Breyer, also concurring in result, wrote, "Were the legal circumstances different—for example, were state law to prevent the provision of palliative care, including the administration of drugs as needed to avoid pain at the end of life— then the law’s impact upon serious and otherwise unavoidable physical pain . . . would be more directly at issue. And as Justice O’Connor suggests, the Court might have to revisit its conclusions in these cases.” Id. at 2312 (Breyer, J., concurring). Unlike the unsuccessful physicians in Glucksberg, Seeley is incapacitated by nausea precisely because he seeks to save his own life. Yet the State, and the majority of this court, would slap from his hand exactly that which Seeley, his physician, and even the State acknowledge will improve the quality of his life to the detriment of no one. Compare Glucksberg, 117 S. Ct. at 2307 (Stevens, J., concurring) ("Avoiding intolerable pain and the indignity of living one’s final days incapacitated and in agony is certainly '[a]t the heart of [ ] liberty . . . .’ ”) (quoting Casey, 505 U.S. at 851, 112 S. Ct. at 2807).
I wonder how many minutes of Seeley’s agony the Legislature and/or the majority of this court would endure before seeing the light. Words are insufficient to convey the needless suffering which the merciless State has imposed.
b. Errant Precedent
The majority cites six cases to support its claim that marijuana may be constitutionally prohibited without deprivation of due process. Most are distinguishable on their facts. None are controlling precedent for this court in any event. One is from another state; one from our Court of Appeals; one from the Supreme Court; four are from lower federal courts. Inferior federal court precedent is not binding on this court. Home Ins. Co. of N. Y. v. Northern Pac. Ry. Co., 18 Wn.2d 798, 808, 140 P.2d 507, 147 A.L.R. *833849 (1943). Nor are decisions from other states; certainly not our Court of Appeals. The Supreme Court case does not speak to the constitution.
Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980) concerned laetrile, not marijuana, and was dismissed for failure to exhaust administrative remedies. But see Suen-ram v. Society Valley Hosp., 155 N.J.Super. 593, 383 A.2d 143 (1977) (upholding constitutional due process right of cancer patient to ingest laetrile.).
People v. Privitera, 23 Cal. 3d 697, 591 P.2d 919, 153 Cal. Rptr. 431, 5 A.L.R.4th 178, cert. denied, 444 U.S. 949, 100 S. Ct. 419, 62 L. Ed. 2d 318 (1979) also concerned laetrile and is nonbinding precedent from another jurisdiction.
United States v. Rutherford, 442 U.S. 544, 99 S. Ct. 2470, 61 L. Ed. 2d 68 (1979) is binding United States Supreme Court precedent, however, was decided solely on statutory, not constitutional, grounds.
NORML v. Bell, 488 F. Supp. 123 (D.C. Cir. 1980), a U.S. District Court case, involved different issues raised in a challenge by recreational marijuana smokers, not a terminal cancer patient. United States v. Fry, 787 F.2d 903 (4th Cir.), cert. denied, 479 U.S. 861, 107 S. Ct. 209, 93 L. Ed. 2d 139 (1986) also involved issues distinctly different from those raised by Seeley. State v. Dickamore, 22 Wn. App. 851, 592 P.2d 681 (1979) is (1) an inferior Court of Appeals case not binding on the Supreme Court and (2) factually distinct in that it involved only marijuana for recreational use.
To the extent the majority finds support in these cases, I conclude they are inconsistent with the constitutional guarantee at issue, erroneous, and ignoble repetitions of error. Supreme Court cases cited in this dissent control the result and favor Seeley. Ravin is also persuasive.
Conclusion
For the reasons stated I would hold the law in question, which absolutely prohibits the sale, use, and/or ingestion of marijuana, deprives Mr. Seeley of his liberty absent *834that minimum process constitutionally due, and would therefore invalidate the statute and affirm the trial court on that basis. Accordingly, I dissent.
Joseph Sobran, The Wanderer 5 (June 26, 1997).
The Washington privileges and immunities clause provides:
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.
Wash. Const, art. I, § 12.
The federal equal protection clause provides:
*815No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const, amend. 14, § 1.
The ACLU brief asserts the Washington statute prohibiting access to medical marijuana in leaf form violates the substantive due process clause of the Fourteenth Amendment to the United States Constitution. Amicus Br. of the American Civil Liberties Union of Washington Foundation (ACLU Amicus Br.) at 9. This court has the authority to entertain the ACLU’s arguments. City of Tacoma v. Luvene, 118 Wn.2d 826, 832-33, 827 P.2d 1374 (1992) (deciding preemption issue briefed only by amicus); Harris v. Department Labor & Indus., 120 Wn.2d 461, 467-68, 843 P.2d 1056 (1993) (the appellate court has inherent authority to address issue raised only by amicus if necessary to reach a proper decision). Here, the issue has been fully briefed by both sides. See State of Washington’s Answer to ACLU Amicus Br.
Poe v. Ullman, 367 U.S. 497, 543, 81 S. Ct. 1752, 1777, 6 L. Ed. 2d 989 (1961) (Harlan, J., dissenting) (quoting Hurtado v. California, 110 U.S. 516, 532, 4 S. Ct. 111, 119, 28 L. Ed. 232 (1884)).
Seeley’s doctor, Dr. Ernest Conrad III, Director of Musculoskeletal Oncology at the University of Washington, states on the record, "In short, if I could prescribe marijuana for him [Seeley], I would.” Clerk’s Papers (CP) at 82.
The record is replete with uncontroverted evidence that Seeley and many similarly situated cancer patients undergo unbearable pain and digestive unrest as a result of chemotherapy and radiation treatments and that they claim leaf marijuana is one of the only efficacious agents available to ease their suffering.
Casey, 505 U.S. at 894 ("Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. . . . The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” (Citation omitted.)).
Compare Glucksberg, 117 S. Ct. 2258, 2275-93 (1997) (Souter, J., concurring) where Justice Souter exhaustively reviews the legal history of substantive due process through the present day, concluding the Harlan dissent represents the appropriate analysis.
Historically, marijuana has been used in a variety of ways. The original Declaration of Independence (July 4, 1776) was written on hemp as was Thomas Paine’s Common Sense. Jack Herer, The Emperor Wears No Clothes 7 (1995). George Washington and Thomas Jefferson grew it, and Benjamin Franklin used it in an early papermill. Marty Bergoffen & Roger Lee Clark, Hemp as an Alternative to Wood Fiber in Oregon, 11 J. Envtl. L. & Litig. 119, 120 (1996).
Throughout the nineteenth century marijuana was used as an anticonvul-sant, as an analgesic and in the treatment of rheumatism, epilepsy and tetanus. Lester Grinspoon & James B. Bakalar, Marihuana, the Forbidden Medicine 5-6 (1993) (included in part in CP at 92-119). Marijuana was administered to Queen Victoria by her court physician. Id. at 4. In nineteenth century America marijuana was listed in the United States Dispensatory (1854), was generally available in drug stores, and was characterized in an early medical study as "a drug that has a special value in some morbid conditions and the intrinsic merit and safety of which entitles it to a place once held in therapeutics.” Dr. J. B. Mattison, Cannabis indica as an Anodyne and Hypnotic, St. Louis Med. Surgical J. 61, 266 (1891), quoted in Grinspoon & Bakalar, supra at 6.
However, marijuana was repressed by the federal government in 1937 through a stamp tax so burdensome both financially and procedurally that it virtually eliminated any legal medicinal, industrial or recreational use of marijuana. 26 U.S.C. § 4741, repealed by Comprehensive Drug Abuse Prevention and Control Act of 1970, tit.'Ill, § 1101(b)(3)(A), 84 Stat. 1292. The purpose of the tax was prohibition although it was effectuated in the form of a revenue measure because of constitutional limits still enforced against federal lawmaking power. Grinspoon & Bakalar, supra at 8. The elimination of marijuana came from pressures exerted by newly created "Federal drug control agencies, cotton and timber interests, and chemical industries.” Bergoffen & Clark, supra at 122 n.20. Marijuana was removed from the United States Pharmacopoeia and National Formulary in 1941.
Shortly after the Marijuana Tax Act was held unconstitutional in 1969, in a failed attempt to prosecute Dr. Timothy Leary for possession of untaxed marijuana (Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969) (marijuana tax unconstitutional as violative of the Fifth Amendment’s guarantee against self-incrimination)), Congress passed the Controlled Substances Act, placing marijuana in schedule I and directly criminalizing any use of it. Washington followed suit in 1971 and adopted an identical regime also placing marijuana in schedule I. Laws of 1971, 1st Ex. Sess., ch. 308 at 1794 (Uniform Controlled Substances Act).
Under Washington law, use of leaf marijuana is illegal for any purpose. RCW 69.50.204(d)(13). Doctors may never prescribe it no matter how efficacious it may be in a given case. In contrast, Washington law allows doctors to prescribe cocaine, PCP angel dust, opium, and morphine. RCW 69.50.206.
Compare Glucksberg, 117 S. Ct. 2273 (" '[Pjhysician-assisted suicide is fundamentally incompatible with the physician’s role as healer.’ ” (Citation omitted.); (Souter, J., concurring) at 2286-89 (Physician’s care is within American tradition and is given "high value.” Dying patient who seeks help is subject to few state-imposed restraints.); Casey, 112 S. Ct. at 2810, 2830 (upholding the affirmative due process right to obtain medical intervention).
There is an intermediate standard not relevant here, used primarily in the equal protection context. See, e.g., Griffin v. Eller, 130 Wn.2d 58, 65, 922 P.2d 788 (1996); State v. Heiskell, 129 Wn.2d 113, 123, 916 P.2d 366 (1996).
I must confess, even under this standard of virtual judicial abdication, I can still find no rational basis for this statute.
Compare Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 162, 93 S. Ct. 2080, 2109, 36 L. Ed. 2d 772 (1973) (Douglas, J., concurring) ("The struggle for liberty has been a struggle against Government. The essential scheme of our Constitution and Bill of Rights was to take Government off the backs of people.”).
Such recognized "fundamental” liberty interests are catalogued in Wasnington v. Glucksberg, 117 S. Ct. 2258 (1997) (Souter, J., concurring) at 2280-81. Subjects include segregation in education, interracial marriage, marital privacy and contraception, abortion, "personal control of medical treatment” (citing Cruzan) and physical confinement. Justice Souter criticizes what is our majority’s approach as "absolutist” rather than weighing application of competing principles.