(dissenting).
I would affirm the trial court and hold SDCL 20-13-22.1(2) unconstitutional as it applies to this case. SDCL 20-13-22.1 provides:
The provisions of this chapter which prohibit discrimination on the basis of sex shall not apply to the programs or activities of the following when conducted for any educational, social or recreational purpose:
(1) Voluntary youth service organizations, the membership of which has been traditionally limited to members of one sex and principally to persons of nineteen years of age or less;
(2) Nationally chartered veterans organizations or any organization, agency or corporation directly affiliated therewith;
(3) Mother-daughter or father-son activities;
(4) Social fraternities or sororities, the active membership of which consists primarily of students in attendance at institutions of higher education;
(5) Any individual officers or members of such organizations or other individuals co-operating therewith in the conduct of such activities or programs as are listed in subdivisions (1) to (4), inclusive.
The statute creates two classifications. The statute exempts, from the anti-discrimination provisions, any activities conducted for educational, social or recreational purposes by organizations or through programs listed in the five subsections. However, other organizations or individuals which conduct educational, social or recreational activities are not exempt. The question raised on these facts is whether the classification created by subsection (2), which permits discriminatory practices by veteran organizations, violates the equal protection clauses of the state and federal constitutions.
The trial court found that SDCL 20-13-22.1(2) failed the rational basis test as it was arbitrary and unreasonable.1 The majority reverses the trial court’s finding by asserting that the trial court erred in failing to give “heed” to the strong presumption of constitutionality to be given a statute, and in viewing subsection (2) out of the context of the entire statute. Even a “strong presumption” of constitutionality does not rid the statute of its constitutional deficiencies.
The purpose of the South Dakota Human Relations Act is to prevent and remedy discrimination. Therefore, the question is whether a reasonable basis exists to permit discrimination by veteran organizations conducting educational, social or recreational activities, but not other organizations or individuals conducting the same activities. The majority attempts to find a reasonable basis for the distinction by reading the statute as a whole, and stating “we perceive a legislative intention to exempt from the workings of the chapter a wide range of programs, self-contained and sponsored by a variety of organizations that had been operating in the state for many years prior to the enactment of the chapter.” The majority seems to be saying that because veteran organizations have always discriminated in the past, we should permit them to continue to do so. If this is the sole reason for creating the exemption for veteran organizations, it defeats the whole purpose for the Human Relations Act and is not reasonable. Neither the majority nor Teener have suggested any other reason for the distinction between veteran and non-veteran organizations.
Because SDCL 20-13-22.1 also exempts scouting programs, father-son and mother-daughter programs, sorority and fraternity *871programs from the discriminatory provisions, it is argued that there is a rational basis to exempt veteran organizations. The other subsections all differ from subsection (2) in that they involve exemptions for specific programs, while subsection (2) broadly exempts all veteran organizations. The exemptions in the other subsections may have a rational basis, but they are not at issue in this case. The sole issue is whether the exemption for subsection (2) is unreasonable and invalid. It is interesting that the legislature has provided for this contingency. SDCL 20-18-55 provides that invalid provisions of the Human Relations Act are severable and should be severed.
The legislative classification must be reasonable, not arbitrary, and must be based on some distinction having a legitimate relation to the object of that legislation to survive minimal scrutiny. City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 831 (1975); Behrns v. Burke, 89 S.D. 96, 229 N.W.2d 86 (1975). While the legislature is given greater deference under the reasonable basis test, the legislation must have some legitimate purpose. United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). The fact, if it is fact, that veteran organizations have always discriminated is not a reasonable basis to create the classification in subsection (2) and that subsection is arbitrary and unreasonable.
The trial court and the majority both applied minimal scrutiny to SDCL 20-13-22.1(2) by using the rational basis test. I believe the statute should be subject to heightened scrutiny because it is gender conscious. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).2 “[Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig, supra, 429 U.S. at 197, 97 S.Ct. at 457. SDCL 20-13-22.1 permits discrimination on the basis of sex for specifically exempted organizations. Though the impact upon women may not be any more adverse than upon men, the effect of the statute is to permit gender-based discrimination. The majority states that because they find the statute does not violate the first prong of the two-prong rational basis test set out in Meidinger, heightened scrutiny is unnecessary. This is not the proper test to determine which level of scrutiny is necessary. Until it is determined whether a classification is suspect or gender based, the proper level of scrutiny cannot be addressed. The majority applies the two-prong rational basis test without even discussing whether the classification is gender based. The statute is gender based. Craig and Reed provide that where the statute is gender based the rational basis test is inapplicable. The heightened scrutiny test is proper for gender-based discrimination. Craig, supra. Applying this heightened scrutiny, it is clear that the classification created by subsection (2) does not serve an important governmental objective.
I would affirm the trial court and hold that subsection (2) is unconstitutional under the equal protection clauses of the state and federal constitutions as it fails under either test, rational basis or heightened scrutiny.
. The trial court stated:
This Court is frankly at a loss to discern any reasonable basis for allowing veteran sponsored sports activities to discriminate against girls, while prohibiting the same type of conduct by other organizations. If discrimination by a private non-profit club is an activity to be decried and disapproved of, then it stands to reason that the same type of discrimination should be decried and disapproved of when it is carried out by a veterans organization. Simply put, there is no reason to treat the two groups differently, and a statute that does so is necessarily unreasonable and arbitrary.
. Since Reed the Supreme Court has held that traditional rational basis analysis is not sufficient scrutiny where a statutory classification is gender based. Craig, supra. The heightened or intermediate level of scrutiny for gender-based, statutory classifications should not be confused with the highest level of scrutiny where there is a suspect classification. Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Behrns, supra. When there is a suspect classification there must be an overriding or compelling governmental interest for the classification and the classification must be the least restrictive means to achieve that purpose. Id.