(concurring specialty)-
As this court develops an equal protection analysis under the state constitution, I find it important to develop our analysis in a principled manner, understandable to the legislature, the bar, and the courts. Because I share the dissent’s concern that the court’s opinion may be misconstrued as opening the door to substantive due process, I feel I should write.
I.
Equal protection is confirmed in our state constitution as an “unenumerated” constitutional right. Minn. Const, art. 1, § 16 (“The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people.”). Article 1, § 2 provides: “No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.” 1 One of the inherent rights secured to a free people by section 2 is the inherent right to “equal and impartial laws which govern the whole community and each member thereof.” Thiede v. Town of Scandia Valley, 217 Minn. 218, 225, 14 N.W.2d 400, 405 (1944). Put another way, persons similarly situated are to be treated alike unless a sufficient basis exists for distinguishing among them. Bernthal v. City of St. Paul, 376 N.W.2d 422, 424 (Minn.1985).
Until the late 1970’s, little attention was given to the equal protection right secured by article 1, § 2, and, when it was mentioned, it was only in conclusory fashion and often intertwined with the constitutional prohibition against special legislation (art. 12, §§ 1, 2), and the constitutional provision requiring uniformity in taxation (art. 10, § l).2 For example, Dunnell’s states that article 1, § 2 forbids “class legislation,” citing six cases from 1871 through 1951; none of these opinions, however, expressly rely on art. 1, § 2, nor do they explore the meaning of section 2. See 7 Dunnell Minn. Digest Constitutional Law § 5.03 (4th ed. 1990).
Interestingly, our early cases tended to examine statutes challenged on equality grounds in terms of whether or not the statute was special legislation. The court viewed class legislation as a type of special legislation. See State v. Cooley, 56 Minn. 540, 550, 58 N.W. 150, 153 (1893) (“All class legislation is special legislation, although all special legislation is not class legislation * * *.”). Although these early cases analyzed equality principles in terms of protection against “class legislation,” the analysis parallels modern equal protection principles. See Allen v. Pioneer Press Co., 40 Minn. 117, 120, 41 N.W. 936, 937 (1889) (Justice Mitchell sets out a classic equal protection analysis without mentioning “equal protection” or citing art. 1, § 2).
In the late 1970’s, about the time of Clover Leaf Creamery Co. v. State, 289 N.W.2d 79 (Minn.1979), rev’d, 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659, reh’g denied, 450 U.S. 1027, 101 S.Ct. 1735, 68 L.Ed.2d 222 (1981), our court apparently began to develop its own equal protection analysis. As one commentator points out,3 in 1981 this court, in Wegan v. Village of Lexing*894ton, 309 N.W.2d 273, 280 (Minn.1981), found a dram shop notice statute to violate both federal and state equal protection guarantees; in applying a state equal protection analysis, our court borrowed the three-factor test that had been used in tax cases applying our uniformity clause. To satisfy our equal protection guarantee under this test, a law must have: (1) a legitimate legislative purpose; (2) genuine and substantial distinctions, relevant to the purpose of the statute, between those included and those excluded from the statutory classification; and (3) a reasonable connection between the prescribed remedy and the needs peculiar to the class. Guilliams v. Commissioner of Revenue, 299 N.W.2d 138, 142 (Minn.1980); Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979).4 But 2 years later, in AFSCME Councils 6, 14, 65 & 96 v. Sundquist, 338 N.W.2d 560, 569 (Minn.1983), this court rephrased the test as being whether the statutory classification is “rationally related to the achievement of a legitimate governmental purpose,” and in a footnote we stressed that our approach to equal protection was “coextensive with * * * the federal equal protection clause.” Id. at 570 n. 12.
What, then, is the equal protection test under our state constitution? A majority of this court now returns to the three-factor uniformity clause test. I assume, therefore, this is now our equal protection test. A vital question remains, however: When and how is the test to be applied?
II.
If there are no restraints on the rational basis test, a court may make its own appraisal of what is rational legislation and substitute its own judgment for that of the legislature, thereby reviving the discredited doctrine of substantive due process. To avoid a “free-wheeling” court, the United States Supreme Court has imposed a variety of restraints on reviewing courts. City of Cleburne, Tex. v. Cleburne Living Center, Inc., 473 U.S. 432, 476, 105 S.Ct. 3249, 3273, 87 L.Ed.2d 313 (1985) (Marshall, J., concurring). If a statute classifies on the basis of race, alienage, national origin, or gender, the federal courts apply heightened levels of scrutiny; if the statute is neutral on its face, the federal courts do not intrude with a heightened scrutiny analysis unless the challenger establishes a prima facie case of discriminatory impact and discriminatory intent. McCleskey v. Kemp, 481 U.S. 279, 298, 107 S.Ct. 1756, 1769, 95 L.Ed.2d 262 (1987).
For the purposes of our state equal protection guarantee, I would modify this approach so as to preserve a proper regard for the civil liberties of this state’s people while at the same time according the legislative branch the deference which the separation of powers doctrine requires.
I would hold that where a facially neutral criminal statute has, in its general application, a substantial discriminatory racial impact, this court may then apply its three-factor rational basis test, even though there is no showing .that the legislature intended this impact.5 It seems to me the critical importance of racial equality in our multicultural society warrants this closely tailored modification.
I would further hold that when a facially neutral criminal statute is shown to produce an inadvertent discriminatory impact based on race, a different manner of applying our rational basis test is necessary. In this context, we may apply our rational basis test with less deference than we afford generally to legislative enactments.
*895By deference, I do not mean the deference appellate courts give trial court fact-finders, but constitutional deference grounded in the separation of powers doctrine. In light of this doctrine, this court generally will find a rational basis “upon any conceivable state of the facts, although the court does not perceive all the facts justifying the classification * * *.” Loew v. Hagerle Bros., 226 Minn. 485, 488-89, 33 N.W.2d 598, 601 (1948) (citations omitted). Less deference, it seems to me, means we are less willing to conceive supporting reasons and instead require more tangible elaboration of the reasons for the distinctions made by the legislative classification.
III.
The statute involved here creates neither a suspect nor a quasi-suspect class. Nor would anyone argue that the defendants have a fundamental right to be “street level” drug dealers. Whether or not the challengers have shown a prima facie case of racially discriminatory impact, in my view there is absolutely no showing of any discriminatory intent or purpose. In short, we have a facially neutral statute where, under federal analysis, heightened scrutiny is not available.6
I would, therefore, apply our state equal protection analysis in this case. I conclude a showing has been made that the statute, in its general application, impacts substantially more on black than white defendants. I would then, using less than normal deference, apply our three-factor rational basis test:
It seems to me there are substantial differences in the form, packaging, and marketing of crack and powder cocaine, as well as in the manner of ingestion. But given the relative amounts of cocaine base and cocaine powder involved for third degree possession, I conclude any difference between the two drugs, in terms of harm and danger to the user and the public, is problematic. Conceivably there is an appreciable difference in the harm and evil consequences caused by the two drug amounts, but with lessened deference given the legislative enactment, more than conceivable bases or tentative suppositions are needed to establish the substantial distinction between those within and without the class which the applicable equal protection test requires. Therefore, I conclude the statute fails to meet the state’s equal protection guarantee, and I concur in the court’s opinion.
.It appears that Minn. Const, art. 1, § 2 (“rights and privileges"), as well as art. 1, § 7 (the right to "life, liberty or property"), may have come from New York’s Constitution, where the identical language appears. In Baker v. Kelley, 11 Minn. 480 (Gil. 358, 374-75) (1866), this court relied on New York case law in construing art. 1, § 2 to prevent the state from depriving a person of property without due process of law.
. For an account of the history and evolution of equal protection under our constitution, see McKnight, Minnesota Rational Relation Test: The Lochner Monster in the 10,000 Lakes, 10 Wm. Mitchell L.Rev. 709, 722-32 (1984). For a general review of equal protection guarantees under various state constitutions, see Williams, Equality Guarantees in State Constitutional Law, 63 Tex.L.Rev. 1195 (1985).
. McKnight, supra, at 725.
. I have placed the third factor of the Guil-liams-Miller Brewing test first, as this seems to me a more logical way of proceeding under the three-factor test. Significantly, this test can be traced back to Loew v. Hagerle Bros., 226 Minn. 485, 489, 33 N.W.2d 598, 601 (1948), where it appears in a “special legislation" case.
. Compare State v. Hershberger, 462 N.W.2d 393 (Minn.1990). There, a traffic statute was facially neutral towards religion and, under federal First Amendment analysis, the U.S. Supreme Court held that the test whether the state had used the least intrusive means to avoid infringement of the challengers' freedom of religion rights was not applicable. Our court, however, applying the liberty of conscience provision of our state constitution, held that we would apply the least intrusive test notwithstanding the statute’s facial neutrality. Id. at 398-99.
. Some commentators argue that any equal protection claim should be analyzed first under one's state constitution before resorting, if necessary, to the federal standard. Williams, supra, at 1223 & n. 182. I am inclined to disagree. Because we live in a union of states, it seems more appropriate to dispose of an equal protection claim under the federal clause if possible, and only resort to the state protection as an alternative.