¶45. dissenting.
This is the 21st century. This is the United States of America. This is Vermont. Nobody should lose their job because they have a birthday and because of no other reason.
State Trooper George Badgley’s trial testimony reflects both the pain of the loss of a chosen career and the incomprehension of being victimized by a policy allegedly driven by public safety concerns, but actually designed to protect entrenched economic and bureaucratic interests. Now, Trooper Badgley and his co-plaintiff are confronted with a decision of this Court that treats their compelling civil rights claim as if it were no more than a challenge to ordinary economic regulation and that, at the same time, creates confusion and uncertainty in an important area of our constitutional jurisprudence.
¶ 46. The issue in this case is whether the automatic termination of employment of Vermont’s state troopers at the age of fifty-five bears a reasonable and just relationship to a significant legislative goal. Public safety is the purported basis for this discriminatory policy, but a review of the trial court’s findings and conclusions, as well as the evidence upon which they are based, reveal that the *388alleged basis is mere pretext. The bulk of the State’s evidence pertained to administrative concerns that, as the trial court explicitly stated, do not, in and of themselves, justify the discriminatory policy. These concerns, not a perception of any actual threat to public safety, underlie the law here at issue. And even if we assume that the statute’s discriminatory classification is intended to protect the public safety, neither the evidence nor the trial court’s findings demonstrate that mandatory retirement is either a reasonable or fair way of meeting that objective. In short, the mandatory retirement law does not meet the constitutional test under the Common Benefits Clause as set forth in Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999), and other decisions of this Court. Therefore, I respectfully dissent from the majority’s decision to uphold the statute.
¶ 47. By all accounts, both plaintiffs in this case were exemplary officers who are mentally and physically capable of continuing in their jobs and serving the citizens of Vermont. Their circumstances are particularly compelling because their forced retirement is not the first time that their lives have been affected by misguided discriminatory policies.
¶ 48. At the age of twenty-five, after working in the Rutland County State’s Attorney’s Office, Ruth Whitney knew she wanted to be a state trooper. At the time, however, she was advised that the Vermont State Police did not accept female candidates. Undeterred from fulfilling her desire to work in law enforcement, Trooper Whitney took employment with a state’s attorney’s office and two municipal police forces. She worked for the Middlebury Police Department for ten years, and was honored as “Officer of the Year” in 1986. In 1994, she applied to the State Police, who were then accepting female candidates. She was the only female candidate, and the oldest candidate at age forty-three, in her class at the Vermont Academy. It is undisputed that Trooper Whitney is physically fit and capable of continuing to perform her job at the same high level as she has done over the past fifteen years. Yet, once again, the State seeks to prevent her from working on the force by raising the same, long-since discredited, stereotypical notions that a person of a particular gender or age would be unable to withstand the physical rigors of police work.
¶ 49. Similarly, Trooper Badgley was unable to apply to be a state trooper in 1980 because he had turned thirty-five, and at that time the Vermont State Police were not accepting candidates *389who had reached their thirty-fifth birthday. He later joined the force after that policy was ended. Now, like Trooper Whitney, Trooper Badgley is once again, after years of exceptional service, the victim of the same discredited and discriminatory policies that delayed his entry into the Vermont State Police, even though he is concededly mentally, morally and physically fit for the job.
I.
A.
¶ 50. The majority, the trial court, and the parties all acknowledge that the test set forth in Baker governs the determination of whether the mandatory retirement law’s discriminatory classification violates the Common Benefits Clause. That provision prohibits governmental classifications that confer benefits and protections to part of the community while arbitrarily or unreasonably denying them to others. We emphasized in Baker that the Common Benefits Clause is distinct from the Fourteenth Amendment’s Equal Protection Clause, and that it requires a far more rigorous review than the highly deferential rational-basis standard applied under an equal protection analysis not involving fundamental rights. 170 Vt. at 202, 744 A.2d at 870 (stating that Common Benefits Clause “differs markedly from the federal Equal Protection Clause in its language, historical origins, purpose, and development”).
¶ 51. In Baker, we characterized our review under the Common Benefits Clause as a “weighing process” that considers the “nature and importance of the benefits and protections affected by the legislation,” thereby imposing “a ‘more stringent’ reasonableness inquiry than was generally associated with rational basis review under the federal constitution.” Id. at 203-04, 744 A.2d at 871. We stressed that, though we had not abandoned the traditional deference accorded to legislation, Vermont courts had the responsibility “to evaluate the object and effect” of the legislation so that we could “engage in a meaningful, case-specific analysis” aimed at ensuring that any exclusion of benefits bears “a just and reasonable relation to the legislative goals.” Id. at 204, 744 A.2d at 872.
¶ 52. We also stressed, in examining past cases, that we would not be content to accept prejudices from a bygone era or policies that “failed to establish a reasonable relation to the public *390purpose in the light of contemporary circumstances.” Id. at 205, 744 A.2d at 873; see MacCallum v. Seymour’s Adm’r, 165 Vt. 452, 461, 686 A.2d 935, 940 (1996) (“acknowledging] the vast cultural and social changes that have occurred and their effect on adoption practice and the public attitudes about adoption” in holding that a statute denying an adopted person’s right of inheritance violates the Common Benefits Clause); Choquette v. Perrault, 153 Vt. 45, 53-54, 569 A.2d 455, 460 (1989) (determining that a statute requiring a landowner to share the cost of a fence constructed along a common border by, and solely for the benefit of, the adjacent property owner, may have been reasonable when most Vermont land was open and farmed and when most rural landowners owned livestock, but was arbitrary under modern circumstances when applied against a party that owned no livestock).
¶ 53. Thus, we require that statutory exclusions from publicly conferred benefits be premised on an appropriate and overriding public interest, and that the classifications revealed by such exclusions “bear a reasonable and just relation to the governmental objective in light of contemporary conditions.” Baker, 170 Vt. at 206, 744 A.2d at 873. To ensure this rigorous review, Baker instructs us to consider: (1) the significance of the benefits and protections at stake; (2) whether omission of members of the community from those benefits and protections promote the government’s stated goals; and (3) whether the challenged classification is significantly underinclusive or overinclusive. Id. at 214, 744 A.2d at 879.
¶ 54. Here, while purportedly accepting the rigorous Baker test, the majority ultimately applies a minimal rational-basis standard of review. In the end, after perfunctorily going through the Baker criteria, the majority adopts as “valid here” the following comment from Vance v. Bradley, 440 U.S. 93, 112 (1979), a case that expressly employed the federal rational-basis test more than thirty years ago to uphold the mandatory retirement of foreign service workers at age sixty: “it is the very admission that the facts are arguable that immunizes from constitutional attack the congressional judgment represented by this statute.” Ante, ¶ 38. Thus, despite the more rigorous standard set forth in Baker, the majority ultimately reverts to a rational-basis test that immunizes from constitutional attack any law that has any conceivable legitimate purpose. See Vance, 440 U.S. at 111 (framing question under rational-basis standard as whether legislative facts justify*391ing classification could “reasonably be conceived to be true by the governmental decisionmaker”).10 That is the majority’s error here.
B.
¶ 55. Our first task under Baker is to define the part of the community disadvantaged by the law through the loss of benefits made available to another part of the community. Here, the disadvantaged members of the community are persons who have joined or will join the Vermont State Police, who "wish to continue *392their service past the age of fifty-five, and who are fully capable of doing so, both mentally and physically. A subset of this class consists of those who join the force after the age of thirty-five and thus will never be able to qualify for full benefits upon retirement. The statutory basis distinguishing this class, chronological age, is an unalterable physiological characteristic that raises concerns beyond mere economic classifications. As Justice Thurgood Marshall stated in his dissent in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 321 (1976) (Marshall, J., dissenting), wherein he called for application of a standard of review similar to our Baker standard and more rigorous than the rational-basis standard applied by the majority:
There is simply no reason why a statute that tells able-bodied police officers, ready and willing to work, that they no longer have the right to earn a living in their chosen profession merely because they are 50 years old should be judged by the same minimal standards of rationality that we use to test economic legislation that discriminates against business interests.
¶ 56. “Consistent with the core presumption of inclusion,” Baker requires some consideration of the “relative ‘weights’ or dignities of the contending interests.” 170 Vt. at 214, 744 A.2d at 879 (citation omitted). Whatever the State’s justifications for discriminating against persons over fifty-five years of age, those justifications must be weighed against plaintiffs’ significant interests in earning a living and in the context of the historic discrimination against older workers that is now universally recognized as inconsistent with public policy through the passage of the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and subsequent state fair employment practices acts throughout the country. E.g., C. Yates, Annotation, Application of State Law to Age Discrimination in Employment, 51 A.L.R.5th 1, 10-38 (1997) (collecting and analyzing state and federal law demonstrating that “[djiscrimination based upon age has been subjected to close legislative scrutiny, both state and federal”).
¶ 57. Baker next requires us to identify the government’s purpose in drawing the discriminatory classification and to determine whether it bears a reasonable and just relation to the accomplishment of legitimate state objectives. 170 Vt. at 214, 744 A.2d at 879. According to the majority, public safety is the *393principal purpose underlying the mandatory retirement law. Yet, apart from a few general statements by witnesses opining that the law benefits public safety, the only evidence offered by the State to support a public safety rationale was a report prepared in response to this litigation and arriving principally at the unremarkable conclusion that physical performance of individuals generally declines with age.
¶ 58. Limited as it is in what it offers in support of the State’s public safety rationale, the report is essentially the only empirical evidence that the State has to promote that rationale. And even Dr. Gebhardt, the State’s principal expert witness and the report’s chief author, conceded during her trial testimony that her report indicated fully seventy-five percent of officers fifty-five and older were physically capable of performing their job duties, thus making the classification significantly overinclusive. See Baker, 170 Vt. at 214, 744 A.2d at 879 (citing as factor for consideration in determining constitutionality of law whether law is significantly underinclusive or overinclusive). The trial court acknowledged this fact, but concluded that the twenty-five percent failure rate justified the mandatory retirement law.
¶ 59. The majority contends that it is improper to infer from the Gebhardt report that seventy-five percent of state troopers over the age of fifty-five have the physical capacities required for the job. Its contention rests on the assertion that “the line between acceptable and unacceptable job performance was arbitrarily selected by Dr. Gebhardt and not by defendants or, in fact, any law enforcement body” and that whether the state police would use that demarcation line “is a matter of speculation.” Ante, ¶ 33. But this criticism applies equally to the trial court’s assumption, upon which it based its conclusion that mandatory retirement promotes public safety, that twenty-five percent of troopers above the age of fifty-five could not meet the physical demands of the job. And if the 75/25 capability ratio is of no evidentiary value, then there is no evidence whatsoever that mandatory retirement promotes public safety, beyond the fact that, to some unquantified degree, physical capabilities tend to diminish with age — an undisputed proposition that begs the question of the case, which is whether an arbitrary age limitation bears a reasonable and just relation to protecting public safety.
¶ 60. Moreover, the implication of the majority’s reasoning here is that no amount of evidence regarding the feasibility, utility, or *394reliability of any scheme of performance measurement could ever show that a state police mandatory retirement policy was an unjust or unreasonable way of achieving a presumed public safety objective. All the State would have to do is show that the performance-measurement scheme was not the one it might employ. I believe that a state agency has a higher duty than that, and I believe that our judicial system requires much more than such a toothless standard. When a serious challenge is made to a discriminatory employment scheme, and substantial evidence from qualified experts is adduced against that scheme — evidence such as that presented by plaintiffs, which I discuss below — the defendant has the burden of meeting it fairly and refuting it. The State plainly failed to do so here, especially as the majority has downgraded the only empirical evidence offered by the State to justify mandatory retirement.
¶ 61. In marked contrast, plaintiffs presented substantial evidence, most of it accepted by the trial court, demonstrating that mandatory retirement based solely on chronological age does little if anything to promote public safety. Plaintiffs’ primary witness was Dr. Frank Landy. In 1992, as director of the Pennsylvania State University Center for Applied Behavioral Sciences, Dr. Landy headed a team of experts, which included Dr. Gebhardt, who conducted a congressionally commissioned study to determine if the elimination of chronological age as a basis for hiring or retiring police officers would have any impact on public safety.11 *395In addition to Dr. Gebhardt, Dr. Landy’s committee was composed of nineteen leading experts in the relevant fields of inquiry. The resulting five volume report12 was reviewed independently by three separate sources — an internal group of experts who were not involved in the background research, a group of congressional committee staffers, and an independent group of scientists named by the Department of Labor and the EEOC. The report was admitted into evidence in this case.
¶ 62. Based on two years of study, the committee concluded that chronological age is not an accurate predictor of either job performance or ability to perform the duties of a public safety officer and that the public would be better served if available testing regimens, rather than a chronological age-cutoff, were used to determine ability to perform the job. The committee emphasized that individuals well into their sixties were capable of performing the physical tasks involved in law enforcement and that physiological declines often attributed to the aging process are more indicative of alterable, poor lifestyle patterns. Accordingly, the members of the committee, including Dr. Gephardt, unanimously recommended eliminating the exemption for public safety officers from the ADEA’s ban on mandatory retirement.13
*396¶ 68. The Landy report’s findings and conclusions, recapitulated during Dr. Landy’s full day of testimony, are consistent with all other related empirical studies, every one of which has confirmed that fitness resulting from lifestyle choices has far more to do with ability to perform police work than chronological age. See Schiff, supra, at 47-51. The findings and conclusions put to rest the claim that mandatory retirement of law enforcement officers promotes public safety. That notion must now be seen for what it is: stereotypical, discriminatory, outdated, and flatly erroneous. As Dr. Landy testified, “from the science part of it, you can turn out the lights and go home. We agree . . . that age is: (A), a lousy predictor of human performance; and (B), there are alternatives available.” See Gately v. Massachusetts, 811 F. Supp. 26, 31 (D. Mass. 1992) (Gately I), (noting that “the Landy report has overturned comfortable old assumptions about the reliability of age as an indicator of ability” to perform police functions), aff'd, 2 F.3d 1221 (1993), cert. denied, 511 U.S. 1082 (1994). In short, law enforcement agencies cannot point to any “convincing, empirically-based data supporting age restrictions in hiring and retirement policies, and the age standard remains an arbitrary one.” Schiff, supra, at 52.
*397¶ 64. In light of these facts, the trial court made numerous findings crediting Dr. Landy’s testimony and the extensive data supporting it, including that: (1) “age is a poor predictor of ability to continue in certain work, including law enforcement”; (2) “[t]his would be true until at least closing in on 70 years of age”; (3) “[t]here are large individual differences between people for such duties and abilities and these [individual differences] grow as you go up in the age brackets”; (4) therefore, “age is less reliable [as a predictor of fitness and job performance] as you go up in years until around 70 or 80 years of age”; (5) “[although some decline as one ages is inevitable, [the expert’s] studies showed that the rate could not be predicted by simple age brackets and could also be slowed by proper exercise, diet, and such efforts”; (6) it is “also important to note that a ‘decline’ in some areas [of physical fitness] could not necessarily be found to be significant”; (7) “[p]hysically, such concerns as stamina, muscular strength, flexibility are all very individualistic and cannot be assumed by general age brackets”; and (8) “as much as 85% of [police] work” is related to cognitive abilities and personality traits rather than physical abilities or fitness.
¶ 65. These findings further demonstrate the lack of empirical evidence in the record indicating that age-based mandatory retirement is an effective means of protecting the public. Cf. Gately v. Massachusetts, No. Civ. A. 92-13018-MA, 1998 WL 518179, at *6 (D. Mass. June 8, 1998) (Gately II) (in litigation involving an ADEA challenge to mandatory retirement for Massachusetts State Police, the trial court stated that “there is no evidence that [in the six years since the consolidation of the four police forces in Massachusetts] any officer age 55 or older has endangered himself or herself, another officer, or the public while in the line of duty”). Indeed, as noted, Dr. Gebhardt’s tests, which were introduced by the State, demonstrated that a certain percentage of officers of all ages would be unable to pass physical performance tests and, thus, that mandatory retirement, by itself, could not ensure that public safety officers would be able to do their job. According to Dr. Gephardt’s report, the percentage of officers unable to pass physical performance tests would be nearly as high for those fifty-to-fifty-four years of age as those fifty-five and older, and a significant number of officers in their forties would fail such tests. As Dr. Landy testified, if you took Dr. Gebhardt seriously, “you would probably not hire anybody who was over 30-years-old.”
*398c.
¶ 66. Taking into account all of the foregoing, the State’s public safety rationale amounts to no more than the following: (1) human beings decline physically as they age, albeit at a different rate with each individual; (2) police officers require a certain level of physical fitness to perform certain aspects of their job; (3) police work concerns public safety; and (4) the percentage of officers who are incapable of passing physical performance tests increases with the age of the officers.
¶ 67. Even assuming these facts raise significant public safety concerns, we are not thereby automatically bound to accept the Legislature’s method of addressing them. To the contrary, where, as here, that response discriminates against one segment of the citizenry by excluding it from benefits made available to others, our jurisprudence requires us to undertake “a meaningful, case-specific analysis to ensure that [the] exclusion . . . bear[s] a just and reasonable relation to the legislative goals,” Baker, 170 Vt. at 204, 744 A.2d at 872.
¶ 68. Faced with the discriminatory nature of the challenged statute, with the significant evidence showing mandatory retirement laws to be an ineffective method for addressing public safety concerns, and with the obviously more direct alternative of administering performance tests to address any such concerns, the State argued at trial that: (1) physical strength tests currently employed by the Department of Public Safety are not valid job-performance tests but rather minimal fitness tests; and (2) it would be impossible to implement viable performance tests.
¶ 69. The trial court ultimately agreed with the State, opining that the fitness tests currently in use in Vermont are not as good as plaintiffs’ expert believes them to be because they require only that officers meet the level of the fiftieth percentile of a person in his or her age bracket. The court further found that there would have to be “an administrative decision” on the cutoff score for the tests if they were to be used as performance tests, and that this would run into gender issues or “political concerns” from “police unions not wanting to have such determinative testing.” The court acknowledged that “[m]any state police forces do not have a mandatory age policy and [instead] use fitness and performance tests with evaluations,” but speculated that a testing system could lead to legal challenges. The court also expressed a concern that *399developing tests “would have an expense,” but conceded that the administrative costs of Vermont’s current fitness system “are minimal” and that it could not “put a figure to this expense,” given the testimony of a State’s witness that “[h]e did not worry about the costs of such a program” because “it did not appear that the tests they developed would be particularly expensive for the department to run.”
¶ 70. Several of the trial court’s conclusions are based on speculation rather than evidence, and others are inconsistent with its own subsidiary findings indicating that Vermont tests could be modified into performance tests with little cost and that many other jurisdictions have successfully implemented performance tests for law enforcement agencies. Under our standard of review, “when subsidiary factual findings are inconsistent with ultimate factual findings, the ultimate factual finding may not stand.” Borden v. Hofmann, 2009 VT 30, ¶ 11, 185 Vt. 486, 974 A.2d 1249.
¶ 71. Regarding the State’s contention that Vermont’s fitness tests are not performance tests, the Department of Public Safety’s own written rules: (1) explicitly state that one of the tests’ purposes is to “implement the Department’s philosophy that physical fitness is vital to satisfactory job performance by ensuring each new member’s effectiveness to carry out the demands of the job”; and (2) allow the Department to dismiss an officer who cannot pass the tests. Moreover, both the State’s and plaintiffs’ experts recognized that the Vermont fitness tests could be turned into performance tests simply by establishing a cutoff score, a fact that the court also acknowledged while expressing concerns about “political” repercussions from doing so.
¶ 72. As for the State’s claim that implementing viable performance tests is not possible, the evidence unequivocally demonstrated that performance tests for law enforcement personnel are available and that implementing such tests would be neither difficult nor costly. One of the ironies of this case is that the State purports to rely on physical performance testing to demonstrate that some percentage of the population cannot perform police work at fifty-five years of age, but at the same time, argues that physical performance testing is incapable of measuring job performance. If performance tests can be used to determine that a certain percentage of fifty-five-year-olds cannot do police work, they can be used, and indeed have been used for years, to test individuals for their ability to perform police work at any age.
*400¶ 73. Dr. Gebhardt herself testified that a focus of her career has been to develop physical testing to correlate with job performance, and that she has been successful in developing tests that could be used to review the performance of police officers. She also acknowledged that she, along with other members of the Landy committee, had concluded that testing is both more effective and fairer than mandatory retirement. She also agreed that mental, cognitive, and emotional factors make up eighty percent of police work, and that her study did not address these factors. Finally, she acknowledged that Vermont already had in place tests that were adequate for measuring physical performance.
¶ 74. I find no testimony to support the trial court’s “Krupp” finding, cited by the majority, that Dr. Gebhardt “does not believe that there are performance tests that could adequately and safely replace the age rule.” Ante, ¶ 9. Rather, Dr. Gebhardt concluded, and the trial court found, that the Vermont tests as presently designed could not be used as performance tests without a cutoff score. As the district court concluded in Gately II, “the defendants cannot argue persuasively that there is no acceptable alternative to mandatory retirement” because “the Gebhardt-Landy test itself [which was designed by Dr. Gebhardt and endorsed by Dr. Landy] precludes the defendants from proving that it is impossible or highly impractical to test each officer individually.” No. Civ. A. 92-13018-MA, 1998 WL 518179, at *7 (quotations omitted). Further, in granting the original preliminary injunction on the mandatory retirement law, the district court noted in Gately I that “the most thorough and authoritative evidence presented states unequivocally that currently available tests are more effective than age in identifying officers who may be unable to perform the law enforcement and public safety tasks required of them.” 811 F. Supp. at 31.
¶ 75. Nevertheless, seizing upon the trial court’s stated belief that obtaining agreement on particular performance tests would be difficult because of union resistance and gender issues, the majority accepts the trial court’s conclusion that performance testing would not be “at this time ... an adequate replacement for a mandatory retirement policy to meet the State’s public safety objectives.” Ante, ¶¶ 36-37. But, as indicated above, the majority’s conclusion is plainly inconsistent with the evidence and the trial court’s findings of fact. The experts for both sides agreed that the Vermont tests could be used to determine fitness for job *401performance as long as a cutoff score were determined. Dr. Landy testified that the current Vermont fitness tests measure virtually the same physical skills that Dr. Gebhardt measured and reported in her own study. Even assuming that the Vermont tests would not be adequate to measure job performance, both experts agreed that adequate physical performance tests have been available for years. Dr. Gebhardt, herself, has developed such tests, and the trial court found that “[m]any state police forces . . . use fitness and performance tests with evaluations” as a basis for retiring officers who are physically unfit for duty. According to Dr. Landy, eleven or twelve such tests were available or in use by 1993, and that number has now risen to twenty-five or thirty.
D.
¶ 76. Given the paucity of evidence indicating that mandatory retirement is an effective means of addressing public safety concerns, we are left with the administrative concerns that made up the bulk of the State’s evidence and the trial court’s findings. But neither these administrative concerns — even if proved, which they were not — nor the trial court’s speculative fears that some parties might object to implementing a system that does not discriminate based on age can possibly justify the conferring of emoluments or advantages on one set of persons while denying them to others equally qualified. These are not the kind of justifications that could possibly support a constitutional challenge to a discriminatory classification based on age. Cf. Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (stating that “any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands ‘dissimilar treatment for men and women who are . . . similarly situated,’ and therefore involves the ‘very kind of arbitrary legislative choice forbidden by the [Constitution]”’ (citation omitted)).
¶ 77. The trial court noted that mandatory retirement is supported by the state police union and is seen as having a number of benefits, including encouraging “younger officers ... to stay on the force with expectations of openings through promotions being reasonably easy to foresee” and “keeping new ideas coming forward with new personnel.” According to the court, “the 55 year figure offers young recruits the advantage of not having to work well past that time to get good retirement benefits. Many can *402retire even earlier if they started in their twenties or early thirties.” In the same vein, the court cited both the belief of former commissioners that mandatory retirement keeps the force “viable” and “energized” and the belief of the president of the state police union that mandatory retirement coupled with allowing full retirement after twenty years was “good for recruiting.”14
¶ 78. Even a cursory examination of the transcripts and the trial court’s decision reveals that these secondary administrative concerns, not public safety, are the real reasons underlying the mandatory retirement law, or at least why, in the face of overwhelming evidence that such laws fail to promote public safety, they continue to exist. I would vote to uphold the law if there was any evidence that it actually promoted public safety, but neither the record in this case, nor the history of mandatory retirement for law enforcement officers generally, supports the *403alleged public safety rationale.15 Indeed, it is difficult to imagine *404what could be less effective at protecting the public than a system that consistently removes the most experienced police officers, while doing nothing to ensure the fitness of officers below the retirement age.
¶ 79. Not only is the challenged law significantly overinclusive, in that seventy-five percent of the officers who reach the mandatory retirement age would be able to pass physical performance tests, but, at the same time, it is underinclusive in that it permits officers below the mandatory retirement age who cannot pass minimum fitness tests to continue to work. In view of the fact that performance tests exist that could address public safety concerns, the State’s use of mandatory retirement cannot be sustained as a valid substitute for individual determinations based on such tests. I am not advocating that the Court adopt a better or different approach than the Legislature itself has taken to implement a state policy goal, but I am arguing that this Court should strike a discriminatory classification that cannot logically be sustained as implementing a valid governmental purpose.
II.
¶ 80. The majority here has taken the Baker case and made it unrecognizable. It purports to apply the Baker analysis, but in fact has undercut Baker’s attempt to provide a substitute for traditional equal protection analysis in cases involving important personal and civil rights. Baker may have eliminated the multitiered mode of analysis, but it surely did not intend that such rights could be denied upon the mere showing that there is some conceivable fact relating the denial to a governmental purpose.
¶ 81. The majority does not say so explicitly, but it has applied the rational-basis test in this case — a test that heretofore has been employed only where commercial or other lesser rights have been implicated. More specifically, while acknowledging that Baker requires an inquiry into whether a challenged discriminatory governmental classification promotes a legitimate public goal in a manner that is neither significantly underinclusive nor overinclusive, the *405majority applies a test requiring no judicial inquiry beyond determining whether the reasons underlying the State’s action are wholly fictitious. Relying primarily on a thirty-year-old case that imposed a rational-basis analysis in upholding a 1946 law intended to ‘“insure the rapid advancement of men of ability to positions of responsibility and the elimination of men who have reached their ceilings of performance,”’ Vance, 440 U.S. at 99 (quoting Congressional Record), the majority’s decision is in a time warp unaffected by our Baker decision or contemporary societal values that underlie the ADEA and other federal and state laws.
¶ 82. The mandatory retirement of fit, experienced, and capable state police officers, solely because of their age, is plainly unconstitutional under settled precedent of this Court. The law violates the guiding principle of the Common Benefits Clause to safeguard the rights and liberties of all Vermonters, and, in the end, it actually undermines public safety — the purported purpose of the law — because it prevents the most experienced officers from serving the public, while doing nothing to ensure that unfit officers are removed from the force. Equally unfortunate, from the point of view of this Court as an institution, today’s decision makes our Common Benefits jurisprudence seem, not rigorous and principled, as it ought to be, but merely idiosyncratic.
In Baker, Justice Dooley wrote: “It is ironic that in a civil rights case we overrule our precedent requiring the State to meet a higher burden in civil rights cases, but still conclude, under the lower standard, that the State has not met its burden.” Baker, 170 Vt. at 236, 744 A.2d at 894 (Dooley, J., concurring). Here, the irony is that, in a civil rights case, the majority purports to apply the “more stringent” reasonableness inquiry called for by Baker and its antecedents, yet in fact applies the less stringent “rational basis” analysis traditionally associated with the review of economic regulation.
Indeed, in response to the dissent, the majority explicitly embraces the federal “rational basis” standard of review, stating that “we will follow the Clover Leaf Creamery approach and stay our hand.” Ante, ¶ 41. As the majority points out, in Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981), milk sellers challenged a statute that banned the sale of milk in nonreturnable, nonrefillable plastic containers but not in nonreturnable, nonrefillable paperboard containers. The Court and the parties agreed that the applicable standard of review concerning the economic legislation was “the familiar ‘rational basis’ test” and that the legislature’s purposes in enacting the law — promoting resource conservation, easing solid waste disposal problems, and conserving energy — were legitimate state purposes. Id. at 461-62. The narrow issue was whether the state legislature’s economic classification distinguishing between plastic and nonplastic nonreturnable milk containers was rationally related to achievement of the statutory purposes. Id. at 463. Citing the district court’s candid admission “that the evidence was in ‘sharp conflict,’ ” id. at 464, the Court concluded that the federal Equal Protection Clause did not require the state legislature to “strike at all evils at the same time or in the same way,” id. at 466 (quotation omitted), and thus held that the challenged statute bore a rational relation to the state’s environmental protection objectives, id. at 470.
This is the “approach” that the majority announces it will apply in the instant case — even though the Court in Clover Leaf Creamery explicitly acknowledged that “[a] state court may, of course, apply a more stringent standard of review as a matter of state law under the State’s equivalent to the Equal Protection or Due Process Clauses,” id. at 461 n.6, and this Court did exactly that less than a decade ago in Baker. Apparently, it matters neither that we explicitly rejected the less rigorous federal rational-basis test in Baker nor that the instant case involves claims of age discrimination rather than mere economic classification. It is disconcerting to see how quickly and completely this Court has backtracked from the standard of review announced in Baker.
Congress commissioned the study in connection with its temporary exemption for law enforcement agencies from the ADEA’s ban on state and local mandatory retirement laws. Congress enacted the ADEA in 1967 and amended it in 1974 to cover federal, state, and local governments. M. Schiff, The Age Discrimination In Employment Act: Whither the Bona Fide Occupational Qualification and Law Enforcement Exemptions?, 67 St. John’s L. Rev. 13, 14 (1993). The law was supported by undisputed empirical evidence that “the process of psychological and physiological degeneration caused by aging varies with each individual,” that chronological age alone is a poor indicator of ability to perform a job, that mandatory retirement does not take into consideration the differing abilities of people to do a job, and that, despite these “well-established medical facts,” there continued to exist persistent and widespread use of age limits in employment decisions attributable only to arbitrary discrimination. W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 409-11 (1985). Aware of the inconsistent assumptions underlying the ADEA and its various mandatory retirement laws, Congress amended the ADEA in 1986 to prohibit mandatory retirement for employees based on chronological age, but granted state and local governments a temporary exemption for public safety officers in response to claims that a law enforcement *395exemption was needed to protect the public. Schiff, supra, at 14. Congress granted the temporary exemption for seven years, from January 1987 through December 1993, and tasked the Secretary of Labor and the EEOC to study and determine whether elimination of chronological age as a basis for hiring or retiring police officers would have any impact on public safety. Id. at 15. Congress also directed the EEOC to determine whether testing could measure the ability of law enforcement officers to do their job and, if so, to make recommendations for specific standards for testing. Id. at 15-16.
F. Landy, Alternatives to Chronological Age in Determining Standards of Suitability for Public Safety Jobs (January 31, 1992).
Despite the Landy report’s conclusions and recommendation that law enforcement agencies not be exempted from the ADEA’s ban on mandatory retirement, the EEOC did not propose testing guidelines. A political stalemate ensued, and the exemption from the ADEA’s ban on mandatory retirement was extended indefinitely for state and local governments like Vermont which had enacted mandatory retirement for public safety officers before March 1983. Over the years law enforcement agencies have “lobbied Congress with position papers that relied largely on non-empirical, anecdotal data to support the law enforcement exemption” from the ban on mandatory retirement in the ADEA. Schiff, supra, at 45. The law enforcement position has historically been based on nothing more than “a stereotypical feeling that older police officers will experience more physical and medical problems, more injuries, and more lost time to the police department and, *396consequently, will be less able than younger police officers to protect the public.” Id.
Contrary to the majority’s assertion, there is no ongoing “national debate” as to the science of whether performance tests are more effective and appropriate in protecting the public than the mandatory retirement of public safety officers in their fifties. Ante, ¶ 40. To the extent that any such debate ever took place, mandatory retirement has been thoroughly discredited as a public safety strategy. Nonetheless, the majority suggests that there is an “active investigation” of underlying facts “in flux,” and that this Court’s interference with the “ongoing political process” will irrevocably hamstring the Legislature into making choices not yet thoroughly explored. Ante, ¶¶ 40-41. The majority likens the situation to a court’s interference with policies regarding assisted suicide. Ante, ¶ 41. The situation here is completely inapposite. We are not dealing with an issue, such as assisted suicide, that has moral repercussions for many people. That may have been true in Baker, but even still we adopted a more rigorous standard that should have been applied in this case. Nor does this case involve an active investigation of underlying facts in flux. Rather than an active political debate over the underlying science, there is merely a political quagmire stemming from interests unrelated to public safety. The only thing “in flux” is our discarded Baker standard. By abandoning that standard and approving, without rigorous review, a discriminatory policy based on unsupported claims of protecting public safety, we are abdicating our constitutional judicial role in this case.
These findings mirror the bulk of the State’s evidence, which was filled with the kind of stereotypical justifications for age limitations that do not meet any test of constitutional sufficiency. For example, the State’s first witness, former commissioner of the Department of Public Safety, Kerry Sleeper, testified that requiring individuals to retire at a set age “allows management and certainly the Commissioner of Public Safety to strategically manage the organization so that it can more effectively meet the needs of the public.” He stressed that managers responsible for budgeting their resources need to know how long a promoted officer will serve so that that information can be built into the budget. He stated that, like the rest of “corporate America,” the Department needed to be “mean and lean” and reduce “the likelihood of people being entrenched in a job that they really don’t want” to do but continue to do because they are waiting for retirement. Similarly, another former Commissioner, James Walton, testified that mandatory retirement for state troopers is good because the job “requires energy, not only physical energy, but emotional energy, intellectual energy.” He elaborated that “the one thing you don’t want in a police agency is stagnation. You don’t want a silting-in effect at the top of the organization, for that stops movement all the way up through the organization.” As he explained, you want “an organization that brings energetic people in at the bottom and maintains that, as much of that energy as possible through their careers, and in a timely way, so to speak, as harsh as it may sound, move people out so that other people can move into the positions of leadership and service in the department.” The director of recruiting for state police and the president of the Vermont state police union testified, among other things, that the principal draw for potential recruits was to be able to obtain full retirement after twenty years of service, and that the union was opposed to abolishing mandatory retirement because of its desire to maintain and increase state police benefits and of its belief that “our benefits were based on the fact that this was a job or a profession that was intended for younger people.” The State offered no empirical evidence, however, to support even these secondary justifications for the mandatory retirement law.
The lack of a connection between public safety and the chronological age of law enforcement officers is revealed through an examination of the history of mandatory retirement laws, which date back to 1947, when Congress passed legislation “permitting investigatory personnel of the Federal Bureau of Investigation to retire at age 50 at an enhanced annuity.” Johnson v. Mayor & City Counsel of Baltimore, 472 U.S. 353, 364 (1985) (citing Act of July 11, 1947, ch. 219, 61 Stat. 307). Designed to stimulate the morale of FBI officers and to provide an incentive for them to remain in the service for a reasonable period of time, the law “was intended only to give certain employees the option to retire early.” Id. The Attorney General at the time explained that “the Department of Justice sought to maintain the FBI ‘as a young man’s service’ ” and to assure that “ ‘men in their 60’s and 70’s . . . faced with the rigors of arduous service demanded of special agents’ ” would not be “ ‘forced to carry on for lack of an adequate retirement plan.’ ” Id. (citations omitted). Soon thereafter, Congress extended this program to other employees who lobbied for the benefits of an early retirement system. Id.
It was not until 1974 that Congress changed the law to require public safety personnel to retire at age fifty-five if they had completed twenty years of service. Id.; Schiff, supra, at 20 (noting that, by 1978, the optional retirement program legislated by Congress in 1947 to reward thirty-six FBI agents who were subject to hazardous duty had evolved into a mandatory retirement program and age-based system covering 52,000 employees). In so doing, “Congress undoubtedly sought in significant part to maintain a youthful work force and took steps through the civil service retirement provisions to make early retirement both attractive and financially rewarding.” Johnson, 472 U.S. at 365; Schiff, supra, at 20 (noting legislative history that emphasized maintaining “a young and vigorous work force”). But nothing in either “the language of the 1974 amendment nor its legislative history offered any indication why Congress wanted to maintain the image of a ‘young man’s service,’ or why Congress thought that 55 was the proper cutoff age, or whether Congress believed that older employees in fact could not meet the demands of these occupations.” Johnson, 472 U.S. at 365. Thus, the history of the civil service provision mandating early retirement for specified public safety officers “makes clear” that it was not based on a bona fide occupational qualification, to use the phraseology of the ADEA. Id. at 363. As the United States Supreme Court stated, the “absence of any indication that Congress established the age limit based on the demands of the occupation” suggests that the federal mandatory retirement law was the result of “age stereotyping” rather than establishing legitimate actual occupational qualifications. Id. at 366 (quotation omitted).
Vermont’s early retirement law for state troopers followed a similar course. The law initially provided that certain personnel “may be retired” with full benefits at the age of fifty-five. 1971, No. 231 (Adj. Sess.), § 4. In 1977, however, the law was amended to provide that those personnel “shall be retired” at age fifty-five. 1977, No. 80, § 1. Legislative history is sparse from that time period, but we may presume that the forces driving the Vermont law were the same as those driving the federal law. Indeed, the state police union was the principal force pushing for a mandatory retirement exemption to Vermont’s employment discrimination law in *4041981, and in the instant ease the president of the Vermont state police union testified that the union opposed plaintiffs’ efforts to challenge mandatory retirement because of its belief that doing so would undermine the union’s goal of “maintaining and increasing the benefits that we had.” This history confirms that our mandatory retirement law, like the federal law, emerged out of concerns unrelated to public safety.