concurring specially. I concur with the affirmance, and write separately to further explain the overlap between our rational basis and intermediate or middle-tier scrutiny tests.
We first adopted an intermediate scrutiny approach to constitutional review in Carson v. Maurer, 120 N.H. 925 (1980), when we examined the constitutionality of RSA chapter 507-C, which created various classifications for medical injury actions. After determining that the right to recover for personal injuries is not a “fundamental right,” and therefore did not require that we apply strict scrutiny, we nevertheless held that it was an “important substantive right” protected by the State Constitution. Carson, 120 N.H. at 931-32. We therefore held that the right was “sufficiently important to require that the restrictions imposed on those rights be subjected to a more rigorous judicial scrutiny than allowed under the rational basis test.” Id. at 932. “Middle-tier equal protection scrutiny thus entered the jurisprudence of the State Constitution —” City of Dover v. Imperial Cas. & Indemn. Co., 133 N.H. 109, 121 (1990) (Souter, J., dissenting). This new level of scrutiny required that legislation be “reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.” Carson, 120 N.H. at 932 (citing State v. Scoville, 113 N.H. 161, 163 (1973), *536in turn quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).
Justice Souter, while still a member of this court, examined our holding in Carson in his dissent in Dover. He noted that the Carson intermediate test “suffers from a proven susceptibility to confusion with other standards of equal protection review, a failing perhaps portended by the derivation of Carson’s language from F.S. Royster.” Dover, 133 N.H. at 121 (Souter, J., dissenting). He first explained that the test applied in Royster, although using the term “fair and substantial,” was in fact “what we today would call the first-tier, rational basis test.” Id. at 122 (Souter, J., dissenting). He continued, “Although the federal judiciary, like this court, has subsequently tried to use Royster’s formulation to provide ‘somewhat heightened’ middle-tier scrutiny, the very opinions cited in Carson as so applying it have reverted to type, as it were, by lapsing into rational basis terminology.” Id. (Souter, J., dissenting) (quoting City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 441 (1985)) (citation omitted).
Justice Souter continued his critique of the intermediate standard by questioning whether legislation examined under that test should receive the same high level of deference it does under rational basis review. Id. at 122-23 (Souter, J., dissenting). The test as articulated in Carson only required that the legislation be related to a “legitimate legislative objective.” Carson, 120 N.H. at 933. He explained:
This pledge of deference is a shaky one, however, thanks to uncertainty over the meaning of the second segment of the standard derived from Royster, requiring a “fair and substantial” relationship between the chosen classification and the legitimate legislative objective. This uncertainty must be seen as a further condition not only facilitating the identification (or misidentification) of the Carson standard with the rational basis test, as we have seen, but also placing temptation in the way of those inclined to impose a far stricter standard in the name of intermediate scrutiny____
Dover, 133 N.H. at 123 (Souter, J., dissenting). That is, where intermediate scrutiny professes to impose a higher standard on the government to justify its action, the government should have to prove more than that its ends are merely “legitimate.” Indeed, the federal intermediate scrutiny standard that Carson purportedly adopted requires not that an individual’s substantive right be important, but rather that the governmental objective be important. See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976) (equal protection requires that certain classifications “must serve important governmental objectives and must be substantially related *537to achievement of those objectives”); United States v. Virginia, 518 U.S. 515, 533 (1996) (same).
After explaining the problems inherent in Carson and the intermediate scrutiny test it articulated, Justice Souter stated, “[T]he task confronting the court is to identify the requisite degree of efficiency, or fit, that intermediate scrutiny demands.” Dover, 133 N.H. at 123-24 (Souter, J., dissenting). He then encouraged “both advocates before the court and members of the court itself [to] confront the difficulty in the earliest possible case, for until the job is attempted, the intermediate nature of the scrutiny will remain elusive.” Id. at 124 (Souter, J., dissenting).
Justice Souter concluded his dissent by arguing that the court in Dover had misapplied the purported middle-tier test set forth in Carson. He felt that the standard was not only wrongly adopted, but also that the Dover court in fact applied strict scrutiny under the label of an intermediate analysis:
And so the “fair and substantial” relation test is metamorphosed yet again. A formulation that began its juridical life as a rational basis test, and was ostensibly adopted by this court as a standard of intermediate review, is now being applied by a majority of the court to impose the strictest scrutiny known to equal protection analysis. There could be no more striking argument for the need to reexamine the Carson test and the conceptual basis underlying what passes for intermediate review.
Id. at 127 (Souter, J., dissenting).
One year after Dover was decided, we appeared to take on this challenge. In Brannigan v. Usitalo, 134 N.H. 50 (1991), we were asked to reverse Carson on the grounds that its “legal antecedents [were] questionable and its scholarship unsound.” Brannigan, 134 N.H. at 54 (quotation omitted). After determining that “Carson was well-reasoned and considered with special care, was the product of a unanimous court, and has been repeatedly and consistently accepted and applied by this court,” id. at 57 (quotation and ellipses omitted), we upheld its articulation of the intermediate scrutiny test as inquiring: (1) whether the statute has a fair and substantial relation to a legitimate legislative objective; and (2) whether it imposes unreasonable restrictions on private rights, id. at 56.
I agree with Brannigan to the extent that the court there reaffirmed the conclusion that certain substantive rights “are sufficiently important to require that the restrictions imposed on those rights be subjected to a more rigorous judicial scrutiny than allowed under the rational basis test.” Carson, 120 N.H. 932. Further, I do not suggest that intermediate scrutiny should no longer be applied in certain equal protection situations, as this *538case demonstrates. See also Dow v. Town of Effingham, 148 N.H. 121, 124-25 (2002). I believe, however, that the Brannigan court failed to recognize and resolve the confusion existent in our intermediate scrutiny test. Indeed, as Justice Souter acknowledged, and the Brannigan court ignored, even post-Carson we have “recogniz[ed] candidly that the rational basis test and the test derived from Royster have in some instances been treated as interchangeable.” Dover, 133 N.H. at 122 (Souter, J., dissenting) (citing State v. Deflorio, 128 N.H. 309, 315 (1986) (fair and substantial relation test “assumed to be equivalent to rational basis test”)).
This confusion can also be seen in our other levels of scrutiny — namely, rational basis review and strict scrutiny. Both use some form of the terms “reasonable,” “arbitrary,” or “unduly restrictive.” Our rational basis test requires that legislation be rationally related to a legitimate governmental interest. See Taylor v. Town of Plaistow, 152 N.H. 142, 145 (2005). However, under that standard we have additionally inquired into the “reasonableness of a particular zoning provision,” id., and required that legislation challenged under the rational basis test “not unduly restrict fundamental rights,” Dow, 148 N.H. at 124 (quotation omitted). Our strict scrutiny test requires that restrictions on fundamental rights must be necessary to achieve a compelling governmental interest. Seabrook Police Assoc. v. Town of Seabrook, 138 N.H. 177, 179 (1993). However, the Seabrook court also declared that a “regulation [must be] reasonably related to its objective and [must] not unduly restrict the fundamental right in question.” Id. at 179.
It is because of the confusion in our standards of constitutional review that I join the majority in recognizing the overlap between our rational basis and intermediate or middle-tier scrutiny standards. I agree that this is not the case to address these issues, as they are not raised by the record or the parties. However, like Justice Souter, I encourage future litigants to confront the elusive nature of the intermediate standard. Specifically, I believe that we must address: (1) whether the terms “reasonable” and “arbitrary” should continue to be part of our intermediate test, compare, e.g., LeClair v. LeClair, 137 N.H. 213, 223 (1993), with Carson, 120 N.H. at 932-33; and (2) whether the governmental objective required by the test should be merely “legitimate” as in rational basis review, or whether we should require an “important” objective due to the “fair and substantial” prong of the intermediate scrutiny test, compare Brannigan, 134 N.H. at 56, with Craig, 429 U.S. at 197, and Virginia, 518 U.S. at 533.
A new articulation of this test is necessary to bring it into conformity with our other levels of constitutional review. An intermediate scrutiny standard should require more scrutiny than the rational basis test— namely, that legislation merely be rationally related to a legitimate *539governmental interest — but a less exacting examination than our strict scrutiny test — namely, that legislation be necessary to achieve a compelling governmental interest and narrowly tailored to meet that end. As currently articulated, it is not clear whether our intermediate scrutiny test does so.