dissenting.
I dissent. In Fabio v. Civil Service Commission, 489 Pa. 309, 414 A.2d 82 (1980), this court stated that the right to privacy “encompasses protection from governmental interference in:
“... activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, [87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010] (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, [62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655] (1942); contraception, Eisenstadt v. Baird, 405 U.S. [438] at 453-54, [92 S.Ct. 1029 at 1038-1039, 31 L.Ed.2d 349]; id., at 460, 463-465 [92 S.Ct. at 1042, 1043, 1044] (White J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, [64 S.Ct. 438, 442, 88 L.Ed. 645] (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925); Meyer v. Nebraska supra [262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)]. Roe v. Wade, 410 U.S. at 153, 93 S.Ct. at 726-727.
“Normally, once a court finds that an individual has a constitutionally protected right to privacy to engage in a course of conduct, the government’s regulation limiting this right may only be justified by a ‘compelling state interest.’”
489 Pa. at 323, 414 A.2d at 89.
Incredibly, the majority finds that Section 307(7) of the Workmen’s Compensation Act does not implicate the constitutional right to privacy because although the provisions of the act may terminate an economic benefit, the individual is, nonetheless, free to make any choice he will concerning his living arrangements. In other words, although government may not be able to prohibit one person from living with another, it is free to withhold certain otherwise entitled financial benefits from a person who lives in a relationship of which government does not approve.
This analysis simply confuses the issues, which are well defined by our holding, cited above, in Fabio. The issues are whether privacy is implicated in McCusker’s choice to live in an unmarried relationship with a woman, and, if it is, whether government has a compelling interest in regulating this conduct.
The answer to the first question is that privacy is certainly implicated, as the several citations indicate, in intimate relationships between the sexes. The answer to the second question is that government has no compelling interest whatsoever in regulating such relationships for the purposes of encouraging the formulation of some types of relationships and discouraging others by paying or withholding financial benefits which would otherwise be available. The majority’s endorsement of such social engineering, in my view, is from another age.
I would reverse Commonwealth Court, and would hold that Section 307(7) of the Workmen’s Compensation Act is unconstitutional insofar as it allows the termination of benefits payable to those engaged in what is termed “meretricious” relationships.