(concurring in part, dissenting in part) — I concur in the decision that RCW 49.44.120, which allows the State Patrol to require its applicants to submit to a polygraph test, does not violate O'Hartigan’s constitutional right of privacy.1 However, I disagree with the majority's analysis. The majority cites Peninsula Counseling Ctr. v. Rahm, 105 Wn.2d 929, 719 P.2d 926 (1986) and Bedford v. Sugarman, 112 Wn.2d 500, 772 P.2d 486 (1989) as authority to apply the rational basis analysis. Majority opinion, at 118. Because the polygraph test is an inherently intrusive invasion of O'Hartigan's fundamental right of privacy, I would apply the strict scrutiny level of review to this case, which requires the State to show a compelling interest justifying the intrusion and that there are no less intrusive means of meeting that interest.
I
The federal constitution does not guarantee a general right to privacy. Katz v. United States, 389 U.S. 347, 350-51, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). However, the United States Supreme Court has recognized that one aspect of the liberty interest protected by the Fourteenth Amendment is a right of personal privacy, or a guaranty of certain areas or zones of privacy. See Carey v. Population Servs. Int'l, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977); Roe v. Wade, 410 U.S. 113, 152, 35 L. Ed. 2d 147, 93 *126S. Ct. 705 (1973); Meyer v. Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625 (1923).* 2
While the right of privacy "still remains largely undefined", the Supreme Court has recognized that the federal constitution protects two kinds of privacy interests:
One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.
Whalen v. Roe, 429 U.S. 589, 599-600, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977) (Court found the State's action (placing certain, limited medical information into a centralized computer system) did not "pose a sufficiently grievous threat to [the patient's privacy] interest to establish a constitutional violation." 429 U.S. at 600).3 In Peninsula Counseling Ctr. v. Rahm, supra, we adopted the Supreme Court's holding in Whalen and recognized the federal right has been limited to a "core group of privacy rights". 105 Wn.2d at 933.
The list in Whalen of types of privacy rights has grown. Professor Ken Gormley of the University of Pittsburgh School of Law has an unpublished monograph as of the time of this opinion, One Hundred Years of Privacy, in which he lists the following:
1) The right to be let alone, with respect to the acqui[si]tion and dissemination of information concerning the person, particularly through unauthorized publication, photography, or other media. (Warren and Brandéis' original privacy tort).
2) The right to be let alone, with respect to warrantless governmental searches and seizures winch invade a sphere of *127individual solitude deemed reasonable by society (4th Amendment privacy).
3) The right to be let alone, where one individual's freedom of speech threatens to disrupt another individual's liberty of thought and repose. (First Amendment privacy).
4) The right to be let alone, with respect to fundamental (often unanticipated) decisions concerning the individual's own person, which are explicitly or implicitly reserved to the citizen by the terms of the social contract (Fundamental-decision privacy).
5) The right to be let alone, as protected by a myriad of express and implied state constitutional guarantees, generally overlapping with categories 1 through 4, above.
Ken Gormley, One Hundred Years of Privacy 103-04 (1992) (unpublished manuscript, on file with the Yale Law Journal and author).
Under existing federal law, O'Hartigan has a federally protected constitutional privacy interest in avoiding disclosure of personal matters. A potential employee of the State may not be required to forego her constitutional rights simply to gain the benefits of state employment. Kelley v. Johnson, 425 U.S. 238, 245, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976). The polygraph test poses a threat to O'Hartigan's constitutionally protected privacy interests:
the most serious threat posed hy the use of the instrument is the invasion of the personal liberty of the worker subjected to interrogation. ... It is the character of the interrogation itself — focusing on past acts and associations, ferreting out attitudes, opinions, and beliefs about sex, politics, and religion — which presents the critical threat to individual integrity by the invasion of personal privacy.
Herrman, Privacy, The Prospective Employee and Employment Testing: The Need To Restrict Polygraph and Personality Testing, 47 Wash. L. Rev. 73, 153-54 (1971).
A
The questions asked in the State's polygraph test concern personal matters, which fall Tinder protected "zones of privacy". Where the state action invades a constitutionally protected zone of privacy, strict scrutiny is applied and the State has the burden of showing a compelling government interest which justifies the invasion of the right, that there *128are no less intrusive means of protecting its interest and that the means used have been narrowly tailored to meet that interest. See Carey v. Population Servs. Int’l, supra; Roe v. Wade, supra; Whalen v. Roe, 429 U.S. at 606 (Brennan, J., concurring).
Several courts have held the inherently intrusive nature of polygraph tests warrants strict scrutiny, and I agree. In Long Beach City Employees Ass’n v. Long Beach, 41 Cal. 3d 937, 719 P.2d 660, 227 Cal. Rptr. 90 (1986), city employees challenged the constitutionality of a statutory scheme allowing the City to administer involuntary polygraph examinations. The California Supreme Court found the standard polygraph test is "far more intrusive than a series of questions related directly to the employee's job performance", and that where they are used as a preemployment screening device, " 'fishing expeditions' and shockingly intrusive questions have been reported." 41 Cal. 3d at 944, 946.
Therefore, the court held the intrusive nature of polygraph tests into private matters requires the State to show a compelling governmental interest. 41 Cal. 3d at 948.4 The court concluded the City's orders to its employees to submit to polygraph examinations intruded upon their "constitutionally protected zone of individual privacy" under the state constitution and also violated their right to equal protection under the federal constitution. 41 Cal. 3d at 956.
In Thorne v. El Segundo, 726 F.2d 459 (9th Cir. 1983), cert. denied, 469 U.S. 979 (1984), the court applied heightened scrutiny.5 Thome applied for a promotion to become a police officer. As part of the application process, she was required to take a polygraph examination. The examiner asked personal questions concerning Thome's sexual activity, former relationships, and a miscarriage she had suffered. Thome was subsequently disqualified from the *129list of applicants. She then filed an action against the City under 42 U.S.C. § 1983 and § 2000e, alleging invasion of constitutionally protected privacy and associational interests and sex discrimination.
The Court of Appeals found Thome had a constitutionally protected right of privacy and that both types of privacy interests under Whalen v. Roe, supra, were implicated by the polygraph examiner's questions. The court then conducted a balancing test, and required the City to show that its inquiry was justified by the legitimate interests of the police department, and that the inquiry was narrowly tailored to meet those legitimate interests. 726 F.2d at 469. The court found the City failed to show the means it had used were narrowly tailored to meet a legitimate interest. There was no showing that "private, off-duty, personal activities of the type protected by the constitutional guarantees of privacy and free association have an impact" on job performance. 726 F.2d at 471. The court concluded Thome's right of privacy had been violated.
See also Texas State Employees Union v. Department of Mental Health, 746 S.W.2d 203 (Tex. 1987) (Department's polygraph policies violate privacy interests protected under state constitution); Hawaii Psychiatric Soc'y Dist. Branch v. Ariyoshi, 481 F. Supp. 1028 (D. Hawaii 1979) (privacy interest in nondisclosure extends to individual's liberty to make decisions regarding psychiatric care and State must show a compelling interest which outweighs the privacy interest).
The privacy issue is decided based on the type of information sought and not the means by which it is obtained. In this case, the questions asked of O'Hartigan concerned private matters which are constitutionally protected. See Clerk's Papers, at 100 (question number 31 implicates freedom of association); 102-04 (questions concerning medical and psychological history); 105 (personal habits regarding alcohol, gambling and drugs); 106 (while the category is labeled "sex crimes", the questions do not ask about specific criminal activity, rather they are vague and may include *130legitimate, personal sexual relations). The right of privacy protects the type of information sought from O'Hartigan. The next step in the analysis is to discuss whether there is a compelling state interest that justifies the intrusion into her right of privacy.
B
The State Patrol's interest is of a compelling nature in hiring employees of high moral and ethical character. The majority balances those interests and properly finds the State's interests outweigh those of O'Hartigan. The State has a compelling interest in setting and maintaining standards for law enforcement personnel and in protecting highly sensitive information. This interest outweighs O'Hartigan's interest in not revealing personal information. Therefore, any method by which the State obtains information is equally invasive of her right to privacy. We must decide whether the method chosen by the State (here, the polygraph) was narrowly tailored to meet the State's interest.
Under a least restrictive means analysis, the question is whether the State can achieve its goal of hiring moral and ethical employees in a way that is less intrusive of O'Hartigan's right of privacy. The intrusion occurs when she is required to reveal specific types of information. The basic question then is whether the State can achieve its goal without having access to the type of information sought. Where the State, as the majority suggests, specifically limits the polygraph questions to those which are directly and specifically related to the employment sought, then the polygraph test may be the least restrictive means. See majority opinion, at 120.
However, the majority erroneously places the burden on O'Hartigan to show there are no less restrictive means and that the test questions were narrowly tailored to meet the State's interest. Once you hold the State must use the least restrictive means, then the burden is on the State to prove it used the least restrictive means. See Peninsula Counsel*131ing Ctr. V. Rahm, 105 Wn.2d 929, 944-45, 719 P.2d 926 (1986) (Pearson, J., dissenting). I disagree with the majority that the questions asked of O'Hartigan were "no more intrusive than was reasonably necessary". Majority opinion, at 120.
Questions concerning medical history and criminal history are not directly job related and fail to meet the least restrictive means analysis. If such information is necessary, the State has other means of obtaining this information. It has access to all criminal records and it can obtain O'Hartigan's medical history by asking her to submit her medical records. Questions concerning sexual activity are entirely invasive of an individual's privacy interests and fail to meet the compelling interest standard. Thorne v. El Segundo, 726 F.2d 459 (9th Cir. 1983), cert. denied, 469 U.S. 979 (1984). Furthermore, the stipulated facts in this case state the polygraph examiner can follow up any of the form questions with other questions until he or she is satisfied with the answers. And, if the examiner believes the examinee is lying, the examiner can ask any other questions he or she desires. Therefore, I agree with the majority that the State must establish guidelines regarding the scope of questions asked during a polygraph test.
For these reasons, I would remand the matter to the trial court to determine whether all the questions asked are narrowly tailored to meet the State's compelling interest and whether they are directly and specifically related to employment.
II
This type of information is also protected under article 1, section 7 of the state constitution. As to these matters, the right of privacy encompasses a specific constitutional right to be let alone:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
Const. art. 1, § 7. We recognize that under some circumstances, article 1, section 7 affords greater protection of *132privacy than does the federal constitution. Bedford v. Sugarman, 112 Wn.2d 500, 507-08, 772 P.2d 486 (1989).6 Because the information sought in this case is clearly protected by both constitutions, it is unnecessary for us to decide the limits of the state constitutional right in this area.
There are, however, numerous state cases that have examined issues of privacy not yet determined by the United States Supreme Court. Rasmussen v. Fleming, 154 Ariz. 207, 741 P.2d 674 (1987); Horsemens Benevolent & Protective Ass'n, Inc. v. State Racing Comm’n, 403 Mass. 692, 532 N.E.2d 644 (1989); Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989); Jennings v. Minco Technology Labs, Inc., 765 S.W.2d 497 (Tex. Ct. App. 1989); Barasch v. Pennsylvania Pub. Util. Comm’n, 133 Pa. Commw. 285, 576 A.2d 79 (1990); State v. Mooney, 218 Conn. 85, 588 A.2d 145 (1991).
Ill
The challenged classification involves a recognized fundamental right of privacy. Therefore, I would also apply the strict scrutiny analysis to O'Hartigan's equal protection argument. The statute implicates discrimination between applicants to all other jobs and applicants to law enforcement (as well as to positions involving controlled substances and national security). For the reasons stated above, the State has shown a compelling interest which outweighs O'Hartigan's privacy interests and justifies the classification. However, it has failed to establish that the polygraph questions were narrowly tailored to meet that interest. I would remand this issue as well.
Smith, J., and Callow, J. Pro Tern., concur with Utter, J.
RCW 49.44.120 provides it shall be unlawful for employers to require employees to submit to a polygraph test as a condition of employment or continued employment, but allows an exception for persons making initial applications to: law enforcement agencies, positions involving the manufacturing, etc., of controlled substances, and positions involving national security.
There are also cases which base the privacy interest on the "penumbra" of rights guaranteed in the first, third, fourth, fifth and ninth amendments to the United States Constitution. See Griswold v. Connecticut, 381 U.S. 479, 484-85, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965); see also Stanley v. Georgia, 394 U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969) (First Amendment); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) (Fourth Amendment).
The former interest, in avoiding disclosure of personal matters, has been applied in criminal cases involving violations of Fourth and Fifth Amendment guaranties, but otherwise remains undefined. The latter interest, independence in decisionmaking, usually involves marriage, procreation, contraception, family relationships, child rearing and education. Roe v. Wade, 410 U.S. at 152-53. The cases cited above establish that decisions concerning these personal matters involve fundamental rights and are therefore protected by the right of privacy.
The court acknowledged the City may require its employees to answer "questions 'specifically, directly, and narrowly relating to [job] performance'". 41 Cal. 3d at 947.
726 F.2d at 470.
Bedford, was decided under federal law and is limited to facts of the case. 112 Wn.2d at 517 (Utter, J., concurring).