dissenting from paragraph four of the syllabus and from the judgment.
I concur with the majority that under the provisions of Section 16, Article I of the Ohio Constitution, as amended September 3, 1912, the state of Ohio is not subject to suits in tort without the consent of the General Assembly.
However, it is my belief that Section 16, Article I, on its face and as applied by the state (in the absence of such consent), unconstitutionally discriminates against the victims of state acts of negligence, in violation of the equal protection provision of the United States Constitution. It infringes upon one of the most fundamental progenitors of due process of law, through which all other legal rights may be enforced — access to the courts unhindered by the need for the expressed consent of the party-defendant.
*150The ability to seek redress in the courts is a fundamental right, guaranteed by the due process provision of the Fourteenth Amendment to the United States Constitution, and restrictions on such a right require “close scrutiny” by the judiciary.14 A state classification denying this fundamental right to the victims of state negligence, in the absence of that state’s expressed consent, draws a line that is repugnant to our traditional democratic concept of governmental responsibility to the public. Because of the importance of the right involved, and the suspect nature of a state’s classification abrogating this right, the usual presumption of constitutionality is reversed. The state must justify the making of the fundamental legal rights of those injured by state acts of negligence contingent upon the good graces of the General Assembly. If a persuasive justification cannot be made for basing the legal rights of only the victims of state acts of negligence upon legislative prerogative, then the condition of legislative consent is properly characterized as “capricious,” as bearing “no relation” to the right to legal recourse, and is thus unconstitutional.
Lack of equal protection of the laws can arise from the denial to one segment of society the rights to due process of law required by the Fourteenth Amendment which are enjoyed by the rest. Discrimination against such a legally “disenfranchised” group (the victims of state negligence), in derogation of as important a right as due pro*151cess of law by impeding open and equal access to the courts, is, in the absence of a showing of compelling justification, “invidious discrimination” which, violates the equal protection clause.
The phrase “invidious discrimination,” in its modern usage, first came from the case of Skinner v. Oklahoma, ex rel. Williamson (1942), 316 U. S. 535, 541, where the Supreme Court stated:
“* * * When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it selected a particular race or nationality for oppressive treatment.”
Likewise, where the state commits intrinsically the same negligent act as would justify recovery if committed by a private entity, and the law lays an unequal hand on those who have “been the unfortunate victims of the state, * * * it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. ’ ’
A classification that discriminates with respect to a right of very great importance is not to be sustained merely because the classification has a rational basis; if the state fails to supply a substantial justification, its discrimination is invidious and unconstitutional. What is apparent from a reading of those United States Supreme Court cases where a state’s classification was held to be unconstitutional was not, in each instance, that the legislative choices were wholly arbitrary, but rather, that they lacked sufficient justification, considering the importance of the interest which they harmed.15 Whenever a state provision impringes upon the exercise of a federally guaranteed and constitutionally protected right, a showing of compelling-state interest is required before such provision can be sus*152tained under a challenge of denial of equal protection of Hie laws.
In Shapiro v. Thompson (1969), 394 U. S. 618, the one-year residence requirement in a state’s welfare laws was held invalid, and the court found, at page 638:
“We conclude therefore that appellants in these cases do not use and have no need to use the one-year requirement for the governmental purposes suggested. Thus, even under traditional equal protection tests a classification of welfare applicants according to whether they lived in a State for one year would seem irrational and unconstitutional. But, of course, the traditional criteria do not apply in these cases. Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest. Under this standard, the waiting period clearly violates the Equal Protection Clause.” (Emphasis supplied.)
Thus, while there might be a rational basis for such a classification, “a mere showing of a rational relationship between the waiting period and (certain) admittedly permissible state objectives” is not adequate “to justify the classification.” (394 U. S. at 634.)
The majority of this court has asserted that “Section 16, Article I, is not, on its face, discriminatory for it creates no classification,” because all persons are barred from their bringing suits against the state. However, as recognized in Brown v. Board of Edn. (1954), 347 U. S. 483, “separate but equal” does not comport with equal protection of the laws where a fundamental right is involved.
The first sentence of Section 16, Article I provides: “All courts shall be open and every person, for an injury done to him * * * shall have remedy by due course of law, and shall have justice administered without denial. * * *” (Emphasis supplied.) The 1912 amendment, coupled with the legislative failure to provide consent for suits against the state, withholds that legal remedy from persons injured by the state, and in so doing “separates” their legal *153rights from those of the rest of society. The amendment read as a whole, and as applied by the state creates a sub-divisional classification wherein a part of society is singled out and denied its ‘ ‘ remedy by due course of law. 16
The majority of this court also cites the following language from Tigner v. Texas (1940), 310 U. S. 141, 147, with which I wholeheartedly agree.
“* * * The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. ’ ’
However, as opposed to the majority of this court, I believe that, in order to determine whether such difference does exist, we must focus upon the underlying substantive conduct involved, and not the status of the party-defendant, when a denial of due process is involved. If two people are walking down the street together, and one is negligently run down by a privately owned and operated truck, while the second is run down by a state owned and operated truck, the law — and common decency— can ill-afford to say that those identical accidents are not “things which are different in fact.”
The United States Supreme Court has through numerous decisions elucidated the meaning of Equal Protection of the Laws in the Fourteenth Amendment to the United States Constitution: Griffin v. Illinois (1956), 351 U. S. 12; Skinner v. Oklahoma, ex rel. Williamson, supra (316 U. S. 535); Takahashi v. Fish and Game Comm. (1948), 334 U S. 410; Yick Wo v. Hopkins (1886), 118 U. S. 356; Reed v. Reed (1971), 30 L. Ed. 2d 225; Baker v. Carr (1962), 369 U. S, 186; Brown v. Board of Edn., supra (347 U. S. 483); and Douglas v. California (1963), 372 U. S. 353.
In each instance where the court found a denial of equal protection, the state was found to have discriminated against the basic rights of persons who were, in fact, sub*154stantively in no different a position than the remainder of society — and yet they were treated differently by the state. The victim of the state truck is both substantively and literally in no different a position than the victim of the private truck. Yet one, but not the other, is denied his day in court in Ohio.
The arguments offered by the state of Ohio have not satisfied the state’s burden of showing “compelling reason” for this classification, which in the absence of consent deprives an entire group of victims the right to seek redress before an impartial tribunal of the law.17
Appellant recommends to this court that the “preservation of sovereign immunity is essential to the operation of modern state government.” The rationale for this assertion is “the very complexity of today’s government * * # viewed in terms of the incredible demands which modern society has thrust upon government.”
However, it is the very expansion of governmental activities into the realm of heretofore private sectors of our society and economy which requires — rather than mitigates —the need for government to be increasingly financially responsible for governmental wrongs committed against private individuals. These private individuals are today’s “emerging minority” — constituting a “disadvantaged” group denied total access to the courts in the face of the continuing absence of legislative consent. Traditionally, the courts have given close scrutiny to provisions that adversely affect the basic interests of other disadvantaged groups. As stated in Hobson v. Hansen (1967), 269 F. Supp. 401, 507:
“* * * Judicial deference to these [legislative and ad-*155mini strati vp. judgments] is predicated in the confidence courts have that they are just resolutions of conflicting interests. This confidence is often misplaced when the vital interest of the poor and racial minorities are involved. For these groups are not always assured a full and fair hearing through the ordinary political processes, not so much because of the chance of outright bias, but because of the abiding danger that the power structure — a term which need carry no disparaging or abusive overtones— may incline to pay little heed to even the deserving interests of a politically wasteless and invisible minority.”
The best means of determining whether or not sovereign immunity is essential to the operation of state government is simply to examine the experiences of the many states which have already abrogated governmental immunity (by either legislative act, constitutional provision or judicial decision). I submit that those states are today still viable governmental and social entities, are still able to provide the functions and services necessary in a modern society, and there is no reason to believe that the experience of Ohio would be to the contrary.
The statistical data cited in appellee’s brief indicates that the fears of fiscal ruin brought by the abolition of sovereign immunity have not been justified.18 See Note, 68 Harv. L. Rev. 506, 517.
After New York consented to having its liability deter*156mined in the same manner as a private citizen, the state experienced no intolerable burden on its economy. See MacDonald, The Administration of a Tort Liability Law in New York (1942), 9 Law and Contemporary Problems 262, 280. See, also, 7th Progress Report to the Legislature, California Senate Pact-Find in Committee on Judiciary (1963).10
Far from hindering the state in its vital activities, the removal of the continuing constitutional discrimination against persons seeking suit against the state of Ohio would instead deter state agencies from engaging in negligent and harmful activity. Governmental liability wonld carry with it the kind of precautions and responsibilities by state entities which ought to be observed in the interest of all the people of this state.
Because of appellant’s failure to show a compelling state interest for maintaining this discriminatory treatment of its citizens, I would affirm the decision of the Court of Appeals.
The right to access to the courts without the consent of government is as basic as these other fundamental rights recognized by the United States Supreme Court: education, Brown v. Bd. of Edn. (1954), 347 U. S. 483; marriage, Loving v. Virginia (1967), 388 U. S. 1; fairness in the criminal process, Gardner v. California (1969), 393 U. S. 367, Griffin v. Illinois (1956), 351 U. S. 12, Anders v. California (1967), 386 U. S. 738, Douglas v. California (1963), 372 U. S. 353; and procreation, Skinner v. Oklahoma, ex rel. Williamson, supra (316 U. S. 535).
Even the right of an illegitimate child to obtain wrongful-death damages arising from the death of his parent has been classified among the basic civil rights we all enjoy. Levy v. Louisiana (1968), 391 U. S. 68, 71.
See Reynolds v. Sims (1964), 377 U. S. 533; Glona v. American Guarantee & Liability Ins. Co. (1968), 391 U. S. 73; King v. Smith (1968), 392 U. S. 309, 334; Levy v. Louisiana (1968), 391 U. S. 68.
The majority decision of this court also maintains this classification. As provided in paragraph one of the syllabus — only persons bringing on action in tort against th<? state need obtain the consent of the General Assembly,
As provided at the present time by R. C. 127.11, persons having claims against the state of Ohio where no other form of remedy is available must present their cause to the Sundry Claims Board. The board only has power to approve claims of $1000 or less, there is no provision for trial by jury, nor appeal nor review of its decisions. The findings of the board serve only as a recommendation to the General Assembly, and the General Assembly may, and does on occasion, refuse to appropriate funds for claims approved by the board.
It should be noted that increased expense to the state is not in itself a “compelling reason” to justify the continued denial of equal protection of the laws. As stated in Shapiro v. Thompson, supra (394 U. S. 618), at page 633:
“We recognize that a state has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a state may not accomplish such a purpose by invidious distinctions between classes of its citizens. It could not, for example, reduce expenditures for education by barring indigent children from its schools. Similarly, in the cases before us, appellants must do more than show that denying welfare benefits to new residents saves money. The saving of welfare costs cannot justify an otherwise invidious classification.”
In that report relied upon by appellee it is noted that California, in the year 1962 after that state’s decision in Muskopf v. Corning Hospital Dist. (1961), 359 P. 2d 457 (abridging governmental immunity in that state), but before the California Tort Claims Act became effective, insurance costs averaged between .099 percent to .269 percent of the annual budgets of that state’s cities, school districts and' counties For the same year, the average per capita cost in cities was 41 cents, for school districts, 65 cents per person, and for counties only 8 cents per person.