concurring. I concur in Part I of the majority opinion, the holding of Part II, and the mandate. I do not, however, concur in the reasoning of Part II. I recognize that to most observers the significance of this decision lies in its result and remedy. In the cases that come before us in the future, however, the significance of this case will he in its rationale — that is, how we interpret and apply Chapter I, Article 7 of the Vermont Constitution. Moreover, in this, the most closely-watched opinion in this Court’s history, its acceptability will be based on whether its reasoning and result are clearly commanded by the Constitution and our precedents, and whether it is a careful and necessary exercise of the Court’s limited powers. I do not believe that the majority’s rationale meets this exacting standard, and I fear how it may be applied — or ignored — in the future.
This is a concurrence and not a dissent. I agree with the majority that the consequence of Kmiting marriage to a man and woman is the exclusion of these plaintiffs, and many persons similarly situated, from numerous rights, benefits, and duties that government and *230society provide to — and impose on — married persons. However we might have described marriage in relation to the very limited government that was created by our Constitution, the complexity of the current system of government-created benefits and burdens has made civil marriage a modern-day emolument, a government recognized and supported special status for which these plaintiffs are not eligible.
This is a civil rights case, very different from a claim of discrimination with respect to, for example, a peddler’s fee, see State v. Hoyt, 71 Vt. 59, 42 A. 973 (1899), operation of partnerships, see State v. Cadigan, 73 Vt. 245, 50 A. 1079 (1901), or regulation of river pollution, see State v. Haskell, 84 Vt. 429, 75 A. 852 (1911). It is also very different from a claim that exemptions to a Sunday closing law unconstitutionally discriminated against large stores, the issue in State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791 (1982). The United States Supreme Court has recognized that discrimination based on race, alienage, national origin, or sex requires greater justification than economic discrimination, such as discrimination in the fees charged certain peddlers based on the type of goods they are selling. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440-41 (1985) (discussing the standards for scrutinizing various classifications). Compare United States v. Virginia, 518 U.S. 515, 532 (1996) (sex), and Loving v. Virginia, 388 U.S. 1, 11 (1967) (race), with Williamson v. Lee Optical, Inc., 348 U.S. 483, 486-88 (1955) (economic regulation). Until this decision, we also recognized this distinction. As we stated in Brigham v. State, 166 Vt. 246, 265, 692 A.2d 384, 396 (1997) : “Where a statutory scheme affects fundamental constitutional rights or involves suspect classifications, both federal and state decisions have recognized that proper equal protection analysis necessitates a more searching scrutiny . . . .”
The marriage statutes do not facially discriminate on the basis of sexual orientation. There is, however, no doubt that the requirement that civil marriage be a union of one man and one woman has the effect of discriminating against lesbian and gay couples, like the plaintiffs in this case, who are unable to marry the life partners of their choice. The majority proclaims that most decisions have concluded that lesbians and gay men are not a suspect classification, inferring that any conclusion to the contrary is wrong. See 170 Vt. at 213 n.10, 744 A.2d at 878 n.10. On this point, however, I believe the central analysis of Ludlow is critical:
*231[A] state court reviewing state legislation is in a very-different posture from the United States Supreme Court when it undertakes the parallel task. Rather than disposing of a case on the premise that its impact will presumably affect more than fifty varying jurisdictions, a state court reaches its result in the legal climate of the single jurisdiction with which it is associated, if federal proscriptions are not transgressed.
141 Vt. at 268, 448 A.2d at 795. Although our precedents mandate use of at least a close cousin of the federal equal protection test, we must, as we said in Ludlow, apply that test in our own “legal climate.”
Vermont’s legal climate differs considerably from that in other jurisdictions where courts have held that lesbians and gay men are not a suspect classification. Indeed, the federal analysis of the rights of lesbians and gay men almost always starts with Bowers v. Hardwick, 478 U.S. 186 (1986), a decision that reflects a legal climate quite hostile to those rights. Bowers upheld a Georgia conviction for sodomy based on a sex act committed by two males in the bedroom of defendant’s home. See id. at 196. It held that, for due process purposes, individuals do not have “a fundamental right to engage in homosexual sodomy.” Id. at 191.
Federal courts considering equal-protection challenges have relied on Bowers to conclude that lesbians and gay men are not a suspect classification. They rationalize that if homosexual conduct can constitutionally be criminalized, homosexuals cannot constitute a suspect class. See, e.g., Equality Found. of Greater Cincinnati Inc. v. City of Cincinnati, 128 F.3d 289, 292-93 (6th Cir. 1997) (holding that under Bowers and its progeny, homosexuals do not constitute suspect class because conduct which defined them as homosexuals could constitutionally be proscribed); Ben-Shalom v. Marsh, 881 F.2d 454, 464-65 (7th Cir. 1989) (citing Bowers and holding that because homosexual conduct may constitutionally be criminalized, homosexuals do not constitute a suspect class); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (same); Woodward v. United States, 871 F.2d 1068, 1074-76 (Fed. Cir. 1989) (same); Padula v. Webster, 822 F.2d 97, 102-03 (D.C. Cir. 1987) (same); see also Opinion of the Justices, 530 A.2d 21, 24 (N.H. 1987) (stating that for federal equal-protection analysis homosexuals do not constitute a suspect class, nor is there a fundamental right to engage in sodomy according to Bowers).
*232The majority errs in relying on these cases because the Bowers rationale applied in all of them is not applicable in Vermont today. Although Vermont, like all states, once criminalized sodomy, and had a “fellation” law, see State v. LaForrest, 71 Vt. 311, 312, 45 A. 225, 226 (1899) (holding sodomy a crime by virtue of 1 V.S.A. § 271 — formerly V.S. § 898 — and adopting common law so far as applicable in Vermont); 13 V.S.A. § 2603 (repealed 1977, No. 51, § 2), it repealed this law in 1977 and does not now prohibit, or otherwise restrict, homosexual conduct between adults, except on the same terms that it restricts heterosexual conduct. See, e.g., 13 V.S.A. § 3252 (sexual assault); 13 V.S.A. § 3253 (aggravated assault); 13 V.S.A. § 2601 (lewd and lascivious conduct).
Since 1992, it has generally been the policy of Vermont to prohibit discrimination based on sexual orientation. See 1991, No. 135 (Adj. Sess.). This includes discrimination based on “female or male homosexuality.” 1 V.S.A. § 143. Thus, I believe our “legal climate” is vastly different from that in Bowers, where, after considering that twenty-four states had criminalized sodomy between consenting adults, the United States Supreme Court concluded that there was no fundamental right, deeply rooted in the Nation’s history, to engage in such conduct. My point here is simply that the rationale in federal decisions for withholding a more searching scrutiny does not apply in Vermont. The majority errs in relying on these decisions and the state court decisions applying the same federal analysis.
Chapter I, Article 7 of the Vermont Constitution actually contains three clauses, the most important of which is the second, which contains the prohibition on governmental actions “for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community.” This anti-privilege language, and variations on it, is contained in the vast majority of pre-civil war state constitutions. See, e.g., Conn. Const. of 1818, art. I, §1; Ky. Const. of 1792, art. XII, § 1; Mass. Const., art. VI (adopted in 1780); N.H. Const., art. X (adopted in 1784); N.C. Const. of 1776, art. III; Ohio Const. of 1851, art. I, § 2; Va. Const. of 1776, Bill of Rights, § 4; Tex. Const. of 1845, art. I, § 2. At least in this century, the jurisprudence in Vermont is similar to that in most states. See, e.g., Town of Emerald Isle v. State, 360 S.E.2d 756, 764 (N.C. 1987) (classification is not exclusive emolument if intended to promote general welfare and reasonable basis exists to conclude it serves public interest); Primes v. Tyler, 331 N.E.2d 723, 728-29 (Ohio 1975) (statute violates constitution because no governmental interest justi*233fies grant of special privilege and immunity); Rosenblum v. Griffin, 197 A. 701, 706 (N.H. 1938) (classification is constitutional under New Hampshire or federal law if based on some reasonable ground); City of Corbin v. Louisville & Nashville R.R., 26 S.W.2d 539, 540 (Ky. 1930) (purpose of emoluments and privileges clause is to place all similarly situated citizens on plane of equality under law).
Oregon, like Vermont, has developed an independent state constitutional jurisprudence. Article I, Section 20 of the Oregon Constitution, adopted in 1859, provides that no law shall “grant[] to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” This provision is similar in purpose and effect to our Common Benefits Clause. See D. Schuman, The Right to “Equal Privileges and Immunities”: A State Version of “Equal Protection,” 13 Vt. L. Rev. 221, 222-25 (1988). The Oregon Supreme Court has described that provision precisely how we today have described Chapter I, Article 7: “Antedating the Civil War and the equal protection clause of the fourteenth amendment, its language reflects early egalitarian objections to favoritism and special privileges for a few rather than the concern of the Reconstruction Congress about discrimination against disfavored individuals or groups.” State v. Clark, 630 P.2d 810, 814 (Or. 1981). Just as this Court has acknowledged in developing its Article 7 jurisprudence, the Oregon court has recognized that a privilege for a person or group of persons means discrimination against others. See id. at 814 (Article I, Section 20 of Oregon Constitution protects against adverse discrimination as well as against favoritism). Thus, while developing an independent state constitutional jurisprudence, the Oregon Supreme Court has looked to the decisions of the United States Supreme Court, but has adopted the federal analysis only where the court finds it persuasive. See State v. Kennedy, 666 P.2d 1316, 1321 (Or. 1983); see, e.g., Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970, 976 (Or. 1982) (declining to adopt federal standard of intermediate scrutiny for sex-based classifications).
The Oregon Supreme Court, like this Court, has adopted the federal, tiered framework for analyzing equal-protection type constitutional challenges. See Hewitt, 653 P.2d at 976 (following United States Supreme Court analysis that asks whether classification is made on basis of suspect classification, and if so, whether such classification is subject to strict scrutiny). Moreover, it has held, as we have held, that its state constitution “prohibits disparate treatment of groups or individuals by virtue of ‘invidious’ social categories” and *234that discrimination against a suspect class is subject to strict scrutiny. Id.; see MacCallum v. Seymour’s Adm’r, 165 Vt. 452, 460, 686 A.2d 935, 939 (1996) (Article 7 protects against invidious discrimination). I point out the similarities between our Article 7 jurisprudence and Oregon’s § 20 jurisprudence because this Court has not established the criteria for identifying suspect classifications, while the Oregon courts have. Because of the historical similarity, I find it useful to look to Oregon case law, and the United States Supreme Court decisions upon which it relies, in considering whether lesbians and gay men are a suspect classification under Article 7.
In Hewitt, the Oregon Supreme Court determined that sex-based classifications are suspect because (1) they focus on an immutable personal characteristic and thus “can be suspected of reflecting ‘invidious’ social or political premises, that is to say, prejudice or stereotyped prejudgments,” and (2) “[t]he purposeful historical, legal, economic and political unequal treatment of women is well known.” 653 P.2d at 977. Accordingly, the court held that sex-based classifications are inherently suspect, like the United States Supreme Court found classifications based on race, alienage, and nationality. See id. at 977-78 (citing Loving v. Virginia, 388 U.S. 1, 11 (1967) (race); Graham v. Richardson, 403 U.S. 365, 372 (1971) (alienage); Oyama v. California, 332 U.S. 633, 646 (1948) (nationality)).
Although the Oregon Supreme Court has not addressed whether lesbians and gay men are a suspect classification, the Oregon Court of Appeals has recently done so. See Tanner v. Oregon Health Sciences Univ., 971 P.2d 435 (Or. Ct. App. 1998). In Tanner, the court held that Article I, Section 20 of the Oregon Constitution requires the Oregon Health Sciences University to extend health and life insurance benefits to the unmarried domestic partners of its homosexual employees. See id. at 448. The Tanner court examined the Hewitt two-part test for defining suspect classes and determined that “immutability — in the sense of inability to alter or change — is not necessary” because alienage and religious affiliation — which may be changed — have been held to be suspect classifications. Thus, it held that defining a suspect class depends not on the immutability of a class-defining characteristic, but upon (1) whether the characteristic has historically been regarded as defining a distinct socially-recognized group, and if so (2) whether that group has been the subject of adverse social or political stereotyping. See id. at 446. Applying this test, the court concluded that the class of homosexual couples is clearly defined in terms of stereotyped personal and social charac*235teristics; is widely regarded as a distinct, socially recognized group; and indisputably has “been and continue[s] to be the subject of adverse social and political stereotyping and prejudice.” Id. at 447. Thus, the court found that the plaintiffs, three lesbian couples, were members of a suspect class.
In this concurrence, I do not detail a suspect-classification analysis, but I can summarize my opinion by saying that I agree with the general framework adopted by the Oregon courts in Hewitt and Tanner. These decisions concerning Article I, Section 20 of that state’s constitution are entirely consistent with the law we have developed under Chapter I, Article 7 of the Vermont Constitution, at least prior to this decision. I find Hewitt and Tanner far more persuasive than the majority’s decision, which backtracks from the established legal framework under Article 7 and fails to provide any guidelines whatsoever for the Legislature, the trial courts, or Vermonters in general to predict the outcome of future cases.
I agree with the majority that the State cannot justify the denial of legal benefits and responsibilities of civil marriage to gay and lesbian couples, And I agree that the appropriate remedy is either to require the State to extend the option of receiving these benefits and associated responsibilities to these couples, or to require that it offer the opportunity for civil marriage on equal terms. I will briefly explain my disagreement with the majority’s rationale for reaching the same result.
The majority’s analysis under Chapter I, Article 7 proceeds in three steps: (1) there is one equality standard imposed by Article 7, and it applies to claims of civil rights discrimination and economic discrimination alike; (2) the equality standard is higher, that is, more active, than the standard imposed by the Equal Protection Clause of the Fourteenth Amendment for analyzing claims of economic discrimination; and (3) under the new standard, the denial of the benefits of marriage to lesbians and gay men violates Chapter I, Article 7. In the first two steps, the majority makes statements entirely contrary to our existing Article 7 jurisprudence. As to the third step, I find no standard in the Court’s decision — it is entirely a matter of “judgment.”
The first step in the Court’s analysis requires overruling a long series of precedents holding that where a statutory scheme affects fimdamental constitutional rights or involves suspect classifications, Article 7 requires “a more searching scrutiny.” Brigham, 166 Vt. at *236265, 692 A.2d at 396.1 Among the decisions that have stated this standard are L'Esperance v. Town of Charlotte, 167 Vt. 162, 165, 704 A.2d 760, 762 (1997); MacCallum, 165 Vt. at 457, 686 A.2d at 936-37; Benning v. State, 161 Vt. 472, 486, 641 A.2d 757, 764 (1994); In re Sherman Hollow, Inc., 160 Vt. 627, 628, 641 A.2d 753, 755 (1993) (mem.); Oxx v. Department of Taxes, 159 Vt. 371, 376, 618 A.2d 1321, 1324 (1992); Hodgeman v. Jard Co., 157 Vt. 461, 464, 599 A.2d 1371, 1373 (1991); State v. George, 157 Vt. 580, 588, 602 A.2d 953, 957 (1991); Town of Sandgate v. Colehamer, 156 Vt. 77, 88, 589 A.2d 1205, 1211 (1990); and Choquette v. Perrault, 153 Vt. 45, 51-52, 569 A.2d 455, 459 (1989).2 The majority barely acknowledges the multi-tiered standard stated in those cases, and dismisses it as a “rigid” analysis. See 170 Vt. at 212, 744 A.2d at 878. 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.
The effect of the majority decision is that the State now bears no higher burden to justify discrimination against African-Americans or women than it does to justify discrimination against large retail stores as in Ludlow. I doubt that the framers of our Constitution, concerned with preventing the equivalent of British royalty, would believe that the inevitable line-drawing that must occur in economic regulation should be equated with the denial of civil and human rights. I do not believe that the new standard is required by, or even consistent with, the history on which the majority bases it.
The second step is also at variance with our Article 7 law, even as it seeks to rely upon it. The majority holds that Article 7 requires a more active standard of constitutional review than the Fourteenth Amendment, as interpreted by the United States Supreme Court, in the absence of a fundamental right or suspect classification. See 170 *237Vt. at 203-04, 744 A.2d at 871-72. This means that in the future this Court is less likely to defer to the Legislature and more likely to find its acts unconstitutional than would the United States Supreme Court. Again, I find great irony in the fact that we are doing this unnecessarily in a case where the main theme of the State and many amici is that we must defer to the Legislature on the issue before us.
I agree that Ludlow, Choquette, and MacCallum contain important holdings about how equality challenges are addressed by a state court. Ludlow holds that we must look at justifications for distinctions that are realistic in view of Vermont’s unique legal culture. See Ludlow, 141 Vt. at 268, 448 A.2d at 795. Choquette and MacCallum hold that such justifications must be relevant to contemporary circumstances and not be wholly archaic. See Choquette, 153 Vt. at 53-54, 569 A.2d at 460; MacCallum, 165 Vt. at 461, 686 A.2d at 940. None of these decisions demonstrate that “Vermont decisions reflect a very different approach from current federal jurisprudence,” which is how the majority characterizes them. 170 Vt. at 203, 744 A.2d at 871. Indeed, we have said over and over that the test, where no fundamental right or suspect class is involved, “is the same under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution” as under Article 7. Lorrain v. Ryan, 160 Vt. 202, 212, 628 A.2d 543, 550 (1993); see Brigham, 166 Vt. at 265, 692 A.2d at 395; L'Esperance, 167 Vt. at 165, 704 A.2d at 762. Although the majority seeks to rely on isolated statements from Ludlow, in fact, we are by this decision creating a new, more active standard of review in Article 7 challenges.3
*238We have wisely, in the past, avoided the path the majority now chooses, a path worn and abandoned in many other states. When Justice Hayes decried the failure of litigants to raise state constitutional issues, see State v. Jewett, 146 Vt. 221, 229, 500 A.2d 233, 238 (1985), he could not have been referring to challenges under state anti-emolument and equality provisions. In state after state, throughout the nineteenth and early twentieth centuries, state supreme courts routinely struck down economic and social welfare statutes under these provisions using an analysis similar to that employed by the majority in this case. See H. Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence 9 (1993). For example, in Auditor of Lucas County v. State, 78 N.E. 955, 957 (Ohio 1906), the Ohio Supreme Court struck down an Ohio law that provided a stipend of $25 each quarter to adult blind persons because it was over-inclusive — including rich and poor — and under-inclusive — including only some disabled persons. See also City of Cincinnati v. Cook, 140 N.E. 655, 656 (Ohio 1923) (striking down ordinance that allowed parking in front of train station only with consent of supervisor of station, in part because it created “privilege or immunity” in those who were allowed to park); Low v. Rees Printing Co., 59 N.W. 362, 368 (Neb. 1894) (striking down eight-hour-day law because it exempted farm or domestic labor); State v. Pennoyer, 18 A. 878, 881 (N.H. 1889) (striking down statute requiring licensing of all physicians, except those who resided in only one town between 1875 and 1879, because it imposed unequal burden on members of same class); Millett v. People, 7 N.E. 631, 636 (Ill. *2391886) (striking down statute requiring mine operators who tied wages to amount of coal extracted to keep scale at mine so coal could be weighed before managers had chance to separate unusable material); In re Jacobs, 98 N.Y. 98, 112-14 (1885) (striking down act addressing deplorable working conditions under which cigar makers labored in tenements by banning the manufacturing of cigars in those dwellings); Ex parte Westerfield, 55 Cal. 550, 551 (Sup. Ct. 1880) (striking down law making it misdemeanor for bakers to force employees to work between six o’clock Saturday evening and six o’clock Sunday evening).
Most of these decisions reflect judicial attitudes prevalent in the era of Lochner v. New York, 198 U.S. 45 (1905), when the United States Supreme Court was routinely striking down economic and social welfare legislation. As the United States Supreme Court modified its jurisprudence to give primacy to the federal and state legislative role in economic and social welfare legislation, state courts did likewise, often on the basis that Fourteenth Amendment jurisprudence was equally applicable under state due process and equality provisions. See Gillman, supra, at 62. See, e.g., Department of Mental Hygiene v. Kirchner, 400 P.2d 321, 322 (Cal. 1965) (Fourteenth Amendment to federal constitution and §§ 11 and 21 of Article I of California Constitution provide generally equivalent but independent protections in their respective jurisdictions); People v. Willi, 179 N.Y.S. 542, 547 (Del. Cty. Ct. 1919) (methods of analysis under Fourteenth Amendment and state constitution are identical); City of Chicago v. Rhine, 2 N.E.2d 905, 908 (Ill. 1936) (simultaneously analyzing federal and state equal protection claims); Ex parte Caldwell, 118 N.W. 133, 134 (Neb. 1908) (upholding under state and federal constitutions statute prohibiting common labor on Sunday).
The Vermont Supreme Court never adopted an activist stance in reviewing economic and social welfare legislation, and history shows we chose the right course. We could have relied upon the looser and more activist language that prevailed in the federal cases in the early twentieth century — the same language that the majority relies upon today, 170 Vt. at 204 n.4, 744 A.2d at 872 n.4 — to substitute our judgment for the Legislature, but wisely we did not. Unfortunately, we have now resurrected that approach. I can find no justification for the holding that Article 7 requires a more activist approach than the Fourteenth Amendment for reviewing social welfare and economic legislation. We were right in Lorrain, Brigham, and L'Esperance on this point and should adhere to those precedents.
*240Finally, concerning the third step of the majority’s analysis, I question whether the majority’s new standard is ascertainable, is consistent with our limited role in constitutional review, and contains appropriate judicial discretion. As Justice Johnson explains in her dissent, see 170 Vt. at 256 n.13, 744 A.2d at 908 n.13, the strength of the federal approach is that it disciplines judicial discretion and promotes predictability. See C. Sunstein, Foreivord: Leaving Things Undecided, 110 Harv. L. Rev. 6, 78 (1996). Indeed, the Oregon courts have followed the federal approach in this area to avoid a balancing process “of pragmatic considerations about which reasonable people may differ over time,” Kennedy, 666 P.2d at 1321, and “policy choices disguised as ad hoc evaluations based on comparison of incommensurables.” Schuman, supra, at 227. The majority calls the federal approach “rigid” at one point, 170 Vt. at 212, 744 A.2d at 878, but then describes it, as applied in Tanner, as an invitation to subjective judicial decision-making. 170 Vt. at 213 n.10, 744 A.2d at 878 n.10. The two criticisms are as inconsistent as any criticisms could be. I accept the former — rigid — as accurate, at least in comparison with the wide judicial discretion the majority claims here as an alternative. The latter — subjective judicial decision-making — is, however, the least accurate criticism the majority could level.
Two points about the new standard are particularly troublesome for me. The majority now requires that legislative classifications be “reasonably necessary to accomplish the State’s claimed objectives.” Id. at 214, 744 A.2d at 878. In our imperfect world, few legislative classifications are “necessary,” and most legislation could be more narrowly tailored to the state’s objective. I cannot square this standard with our limited role in constitutional adjudication. As I noted earlier, while language to this effect appears in Ludlow, it has never been used as the basis of one of our decisions until today.
More importantly, I cannot endorse, in this vitally important area of constitutional review, a standard that relies wholly on factors and balancing, with no mooring in any criteria or guidelines, however imperfect they may be. On this point, I agree with Justice Johnson. See 170 Vt. at 256 n.13, 744 A.2d at 907-08 n.13. I accept the majority’s assertion that it has attempted to avoid a standard based on “personal notions,’’and that all constitutional adjudication requires reasoned judgment, but I do not believe that it has succeeded in properly applying the critical considerations it has identified. Id. at 214, 744 A.2d at 879. Instead of mooring its analysis within the framework of fundamental rights and suspect classifications, the majority professes *241to make its new Article 7 standard “objective and grounded” by-requiring courts, in balancing the competing interests, to “look to the history and ‘traditions from which [the State] developed’ as well as those ‘from which it broke.’” Id. It is difficult to conceive that any persons sitting on this Court, whatever their philosophical persuasions, would be insensitive to the history and traditions from which Vermont developed, and those from which it broke, but how this standard will be applied to Article 7 challenges is not at all predictable. In the end, the approach the majority has developed relies too much on the identities and personal philosophies of the men and women who fill the chairs at the Supreme Court, too little on ascertainable standards that judges of different backgrounds and philosophies can apply equally, and very little, if any, on deference to the legislative branch.
The final irony in this decision for me is that the balancing and weighing process set forth in the Court’s opinion describes exactly the process we would expect legislators to go through if they were facing the question before us. We are judges, not legislators.
For the above reasons, I concur in the mandate, but respectfully disagree with Part II of the Court’s decision, the majority’s rationale for reaching this mandate.
The majority’s characterization of Brigham is neither fair nor accurate. The majority states that Brigham “acknowledged the federal standard,” but “eschewed the federal categories of analysis.” 170 Vt. at 206, 744 A.2d at 873. Far beyond “acknowledging” the federal standards, Brigham held explicitly that they applied under Article 7 — a holding now implicitly overruled by the majority decision. Rather than eschewing the federal standards, we held that the educational financing system advanced no “legitimate governmental purpose” under any standard. See Brigham, 166 Vt. at 265, 692 A.2d at 396.
The majority’s statement that suspect class analysis is “often effectively ignored in our more recent decisions” is inaccurate, unless our statements that we need not reach the issue in a case somehow “ignores” suspect-class analysis. 170 Vt. at 206, 744 A.2d at 873. See, e.g., MacCallum, 165 Vt. at 457 n.1, 686 A.2d at 938 n.1 (in view of our disposition, we need not reach plaintiff’s claim that adopted persons are suspect class).
My concern about the effect of this decision as a precedent is heightened by the majority’s treatment of the Ludlow decision. It is fair to say that for some purposes, there have been two versions of the Ludlow decision. First, there is the one we have described in dicta, usually as a historical event. See State v. Brunelle, 148 Vt. 347, 351, 534 A.2d 198, 201-02 (1987); Hodgeman, 157 Vt. at 464, 599 A.2d at 1373. This one holds that Article 7 is “more stringent than the federal constitutional standard which requires only a rational justification.” Brunelle, 148 Vt. at 351, 534 A.2d at 201-02. Second, there is the Ludlow decision that we have actually used in deciding eases. See, e.g., Choquette, 153 Vt. at 52, 569 A.2d at 459; In re Property of One Church Street, 152 Vt. 260, 263-65, 565 A.2d 1349, 1350-51 (1989). This version of Ludlow holds that the Article 7 standard is the reasonable-relationship test applicable under the Fourteenth Amendment to the United States Constitution. See Choquette, 153 Vt. at 52, 569 A.2d at 459; see also Lorrain, 160 Vt. at 212, 628 A.2d at 550 (test under Article 7 is same as that under federal Equal Protection Clause).
Obviously, these versions of Ludlow are irreconcilable, and only one can be accurate. In case after case, advocates pursuing Article 7 challenges have tried, and failed, to get us to adopt the first version of Ludlow as the basis for a favorable decision. The first *238version has appeared only in dicta in two isolated eases. Today, seventeen years after the Ludlow decision, the advocates have finally succeeded, with a begrudging acknowledgment from the majority that our decisions “have consistently recited” the federal test and are now wholesale overruled.
In view of this history of treatment of Ludlow, I find incredible the majority’s statement that “Vermont case law has consistently demanded in practice that statutory exclusions from publicly-conferred benefits and protections must be ‘premised on an appropriate and overriding public interest,”’ 170 Vt. at 206, 744 A.2d at 873, quoting Ludlow as if all of our decisions after Ludlow disingenuously mouthed one deferential constitutional standard but silently employed a more activist standard. If one general statement could be made, it would be that we have never actually employed the standard quoted by the majority in any case, until this one.
My fear is that once we get beyond this controversial decision, we will end up with two versions of it. Will we go back to minimalist review when we get a claim of discrimination, for example, between large stores and small ones, or will the more activist review promised by this decision prevail? Our history in applying Ludlow says that we will do the former, which I find to be the more desirable, but a serious blow will have been dealt to our ability to develop neutral constitutional doctrine.