dissenting. I agree with the ruling below that the misnomered “Sunday Closing Law,” L. 1959, c. 119, N. J. 8. A. 2A:171-5.8 et seq., is unconstitutionally arbitrary in its classification of the goods whose sale is proscribed on that “special” day of the week. Thus, I respectfully *365dissent from this Court’s reversal of that holding. Irrespective of whether the statutory classification satisfies any of the current Equal Protection tests, it fails abysmally when subjected to scrutiny under a standard too frequently ignored by judges attracted by the intellectual allure of legal niceties incomprehensible to the public — the test of common sense. When examined from that perspective, the idyllic scenario wistfully conjured by the majority to provide the “rational basis” justifying the statutory classification is patently at odds with the realities of the commercial and consumer worlds of 1978. Assuming any “Sunday Closing” legislation with the purpose ascribed to Chapter 119 can be valid, the unreasonableness of this particular statutory manifestation should earn it the condemnation of this Court.
I
Since the facial validity of Chapter 119 was upheld by this Court in Two Guys from Harrison, Inc. v. Furman, 32 N. J. 199 (1960), the trial court was solely concerned with its constitutionality as applied. Furman held that the Legislature’s selection of Sunday as a day for imposing restrictions on commercial activity was a permissible exercise of the police power aimed at the protection of the welfare of the community against “unreasonable interference with the opportunity of the public to find relief from every day tensions.” 32 N. J. at 216, 227 — 228. The Court found that the Legislature could reasonably conclude that the “public health and welfare are implicated when the hustle and bustle mount and intrude unreasonably upon opportunities for rest, leisure and diversion,” and impaired by the resulting “interference with the efforts of the vast majority of the citizens to find surcease from the pressures of the work week on the day generally selected by them for that purpose.” Id. at 216, 228. Although the issue is not squarely presented in this appeal, I entertain substantial doubts that legislation intended to serve such a purpose is within the police power *366and would reexamine the correctness of Eurman’s unquestioning acceptance of its legitimacy.
Ignoring for the moment the economic interests of retailers such as plaintiff who wish to sell the proscribed goods on Sunday, I believe that the statute is constitutionally defective for a totally different reason. It subjects would-be Sunday shoppers to unnecessary governmental restrictions on their harmless personal activities. This Court has recently taken great strides toward the recognition of the primacy of the rights of individual autonomy and self-regulation over the paternalism of public policy. Where the state interest in regulating the personal decisions and conduct of the citizenry is loss than compelling, we have struck down overzealo-us regulatory measures which unduly hinder the prerogatives of the individual. Merenoff v. Merenoff, 76 N. J. 535 (1978); State v. Saunders, 75 N. J. 200 (1977). In Mere-noff, an unanimous Court held that the preservation of marital harmony was a goal whose accomplishment was best entrusted to the discretion -of the marital partners. The presumed efficacy of the public policy prohibiting tort actions between spouses in advancing that wholesome goal was found -insufficient to warrant its continued existence. In Saunders, we held that the State failed to articulate a sufficient interest to justify its regulation of the sexual activities of unmarried adults capable of making responsible decisions on that subject for themselves. In both instances, society was telling its individual members that the apparent penalty it was imposing was “for their own good.” The situation is no different here.
The State is effectively permitting those counties which have opted for this partial prohibition of Sunday sales to tell would-be consumers that they may not purchase the tabooed goods on Sunday, no matter how much they might wish to do so. The reason for this prohibition is to prevent consumers from depriving themselves and others of the opportunity to engage in the relaxation and recreation which they need. In other words, persons who, for whatever reason, *367might choose to shop on Sunday for the prohibited items are prevented from doing so for their own good. The apparent assumption behind this prohibition is that such persons will, by reason of their inability to shop, be effectively forced to devote their Sundays to the recreational activity the Legislature thinks is more beneficial for them. By serving as a deterrent to Sunday shopping, the statute presumably serves as an incentive to Sunday relaxation.
The statute of course has no effect whatsoever on that segment of the community which does not wish to shop on Sunday. These persons will relax voluntarily without any legislative coaxing. However, in modern America many persons consider shopping to be a relaxing, recreational activity. The fact that so many people do shop on Sundays seriously impugns the legitimacy of Chapter 119’s alleged purpose. Yet the State tells recreational shoppers that in order to make them relax on Sundays they may not purchase, among other things, clothes or furniture. Even those for whom shopping is drudgery might wish to be able to get it over with, if they so chose, on some Sunday when inclement weather precludes other activities. Moreover, for many persons shopping on Sunday is often a matter of necessity. To the person who works the other six days of the week, the State says you must travel to an “open” couDty or out of the state if you wish to buy clothes or furniture.
Concededly, there is a© recognized individual “right” tc shop, and an individual’s interest in being free to purchase the proscribed goods on a particular day of the week is far from fundamental. Nevertheless, the State’s legitimate interest in restricting the consumers’ right to do so on Sunday is even less weighty. The ultimate touchstone in assessing the propriety of governmental regulation under the police power is the public need. In Katobimar Realty Co. v. Webster, 20 N. J. 114 (1955), this Court observed that
The police function cannot be expressed in terms of a definitive formula that will automatically resolve every case, for its quality *368and scope are commensurate with the public exigencies arising from everchanging social and economic conditions. * * * The police power is the public right to reasonable regulation for the common good and welfare.
[Id. at 122-23]
We further noted that “the exertion of the [police power] authority shall not go beyond the public need” and that “the authority coincides with the essential public need.” Id. In my view, there is no legitimate public need to force people to relax on Sunday and to do so by disabling them from pursuing one particular type of activity. Moreover, government has no valid interest in determining what kinds of recreation should be available to individuals so long as their choice of activity is not affirmatively harmful to others.
In Furman, Chief Justice Weintraub, in discussing the ban of the statutory predecessor to Chapter 119 on all forms of recreation on Sunday, stated
One is hard put to find a fair connection between such restraints and any known threat to the public health, safety, morals and welfare. * * * [I] t is difficult to find a basis under the police power for such extraordinary restraint upon individual freedom.
[32 N. J. at 217]
To my mind, this succinct observation applies with equal force to Chapter 119 and any other legislative attempt to enforce one group’s concept of socially beneficial Sunday behavior in the name of public welfare by proscribing the voluntary conduct of individuals who choose to pursue their happiness in -some other manner. Eew would seriously contend that the Legislature could constitutionally ban the sale of food on a certain day of the week in order to promote the socially desirable goal of eliminating the individual health problems caused by being overweight. Such a statute invades the zone of personal autonomy. At some point society’s interest in seeing that a person does what is “best” for himself must yield to individual responsibility and free choice in making that determination. Just as the decision whether or not to *369eat certain foods despite their potential adverse effect on one’s health is solely a matter for personal choice, so should be the decision whether to shop or to relax on Sunday.
I do not question the validity of the legislative perception that a need for “rest, leisure and diversion” exists. My concern is .only whether that goal is one that the Legislature may seek to advance in the name of public welfare by invocation of the police power to limit the activities of those who choose not to relax on Sunday and want to shop or of those for whom shopping is itself recreational and relaxing. I think not. Our society might perhaps be less fractious and interpersonal relations much warmer if all persons devoted more time to unwinding from the pressures of the daily grind. However, the police power does not exist in order to sanction all governmental regulation which arguably might bring us closer to a utopian society. Nor does it exist to afford government a privilege to exercise quasi-Orwellian control over its citizens. The proper role of the police power is to protect the public safety, health and welfare. It is not a license to organize individual lives by governmental fiat.
One can theorize innumerable improvements in society which all might hail as salutary developments. But not cveTy potentially beneficial change in human behavior can be legislated bj governmental regulation under the police power and thus imposed on those who would do otherwise. Such an encroachment on individual freedom must be justified by a meaningful and realistic nexus between the goal sought to be achieved and the public welfare. The goal of Sunday “rest and relaxation” has only the most tenuous and speculative connection thereto. The marginal interference with that goal caused by Sunday shopping hardly poses a realistic threat to the welfare of society. The statutory purpose is therefore insufficient to justify Chapter 119’s substantial infringement on the freedom of those who might wish to shop on that day.
*370II
Turning to the validity of Chapter 119 as applied, I agree with the trial court that the statute’s classification of the goods which may not be sold on Sunday lacks any rational basis and fails to advance the rest and relaxation objective relied upon by the Furman Court. In that decision, the 'Chief Justice wrote:
*" * * [w]e must assume * * * that the Legislature found the items dealt with by chapter 119 are ones which, above and beyond all others, are provocative of the problem; that the elimination of their sale on Sunday will remove the undue interference with the opportunity of the citizens for relief from the stress of everyday pursuits.
[32 27. J. at 228-229]
Accordingly, the trial judge quite properly sought to assess the extent to which the unrestricted Sunday sale of the proscribed items would actually interfere with the opportunity of those who wished to do so to engage in relaxing or recreational pursuits. In other words, she sought to test the sustaining rationale found in Furman as applied to the realities of retailing today. Her conclusion that the potentially negative consequences of unlimited Sunday shopping were essentially chimerical was correct in light of both the evidence before her and common sense.
Moreover, I disagree with the majority’s subjection of Chapter 119 to the less than rigorous judicial scrutiny usually reserved for governmental regulation of economic activity. Its use of the rather mechanistic analysis of the “rational basis” test1 is peculiarly inappropriate when the Court is *371faced with consideration of a statute whose primary impact is a substantial infringement upon the freedom of action of many citizens of this State. The statute severely limits personal autonomy and free choice. Since Chapter 119 goes well beyond mere economic regulation, the validity of its classification must be measured under the test we announced in Taxpayers Association of Weymouth, Tp. v. Weymouth, Tp., 71 N. J. 249 (1976): whether the challenged classification bears a “real and substantial relationship” to the governmental interest it is alleged to serve such as would justify its denial of an important personal right. Id., at 286-287. In light of the failure of Chapter 119 to survive the less critical scrutiny of the rational basis test, its inability to meet the more exacting standard of review mandated by Weymouth is obvious. Only the most creative imagination could find a substantial furtherance of the relaxation objective of Chapter 119 by this limited restriction on Sunday shopping.
The folly of the majority’s approach to this question is its foundational assumption that persons who would shop for the proscribed items and persons who would shop for the unregulated goods comprise two distinct and non-overlapping categories. Its conclusion that eliminating the ability of the former class to shop will reduce “hustle and bustle” to the small degree required to sustain the statute under the generous test the majority employs follows a fortiori. The crux of this holding is the “inescapable logic” of its perception that
*372? * * for every would-be Sunday venturer on tlie highways whose only purpose is to purchase or shop for one or more of the proscribed items the effect of the law is highly likely to eliminate that trip.
[See ante at 360]
Had it been made, that trip presumably would have “interfered to some degree with the public enjoyment of Sunday.” See ante at 356. The allegedly self-evident nature of the majority’s observation leads it to find no irrationality in the “legislative supposition that enough such trips are obviated by the Sunday Closing Law as to substantially further the assumed legislative objective * * *.” See ante at 360 (emphasis added). The illogic of the majority’s factual premise renders the validity of its legal conclusion at best questionable.
The' majority conveniently omits any discussion of the fact that Chapter 119 operates as a partial Sunday closing law — retailers who sell goods other than those whose Sunday sale is prohibited are free to open their stores on Sunday and to offer the unregulated goods for sale. In plaintiff’s case, the only significance -of Sunday is that a few departments must be roped off and closed. Non-prohibited wares are sold in the same manner as is done on the other days of the week. Vornado’s employee staffing on Sunday is nearly identical to that prevailing when the store is totally open.
Consumers shop in stores offering a broad spectrum of goods for the convenience of one-stop shopping. Normal shopping lists include both proscribed and unregulated items in order to maximize the utility of one shopping venture. As plaintiff’s representative stated before us at oral argument, the consumer traffic is there on Sunday just as on the other days of the week — the only difference is that the shoppers are unable to purchase the proscribed items on Sunday. To that extent, their shopping trip is not as productive as it could have been, but the trip is made nevertheless. That plaintiff and other similar retailers might enjoy a greater volume of business on Sunday in the absence of Chapter 119 would not necessarily be attributable to a greater number of shoppers.
*373The vast majority of shopping trips contributing to the undesirable hustle and bustle on Sundays would occur with or without the limited prohibition of Chapter 119. The number of trips which would have the purchase of proscribed items as their sole purpose would be at most an infinitesimal addition to the number of trips already made for the purchase of unregulated goods. If the ban of Chapter 119 were eliminated, the utility of trips by those who will also buy unregulated goods would be increased. In such circumstances, it strains reason to say that the rest and relaxation objection of the statute is furthered even slightly, much less substantially, by its classification of the goods which may not be sold on Sunday. In the words of the majority’s own formulation, the “anticipated benefits” to the public enjoyment of Sunday as a day of relaxation from Chapter 119 are indeed “so illusory as to stamp the legislative classification as arbitrary or capricious * * See ante at 356.
Furman held that it would have been irrational for the Legislature to perceive uninterrupted labor as an evil and-have its elimination as the object of Chapter 119 and yet allow all but the proscribed goods to be -sold on Sunday. 32 N. J. at 219, 222. In my view it is equally irrational for the Legislature to have perceived Sunday relaxation as a societal goal and have elimination of any interference therewith as the statutory object and then ban only an insignificant portion of total Sunday activities ■— the retail sale of five types' of goods. Assuming the legitimacy of the goal Chapter 119 seeks to accomplish, its ban on Sunday activity would have to be significantly more far-reaching than it is at present before the statute could fairly be said to reasonably advance the end of maximizing the public’s opportunities to enjoy blissful Sundays. While the power of the Legislature to 'take" one step at a time in an attempt to strike at the perceived evil where it is greatest is undeniable, it is incumbent upon this Court to ensure that the step taken is an effective one - — ■ not an arbitrary singling-out of a particular activity for’ restrictive regulation of imaginary efficacy. All members of *374the public, both those who desire unrestricted shopping and those who seek relaxation on Sunday, will be “hard put” to find an element of common sense in the majority’s sanctioning of this legislative charade.
One need not be clairvoyant to realize that the Sunday hustle and bustle attributable to the pursuit of recreational activities far exceeds that attributable to Sunday shopping. Furthermore, the hustle and bustle incident to shopping for the goods proscribed by Chapter 119 is small in comparison to that attributable to permitted Sunday shopping activities and pales into insignificance in comparison to that attributable to recreational endeavors. I doubt very much that a Sunday driver stuck on a jammed highway for hours in Monmouth County on a summer Sunday evening finds much solace in the fact that none of those sharing his predicament was out shopping for the proscribed goods. Nor is it likely that a similarly-situated driver in the “open” shore counties blames his plight on the fact that Sunday shoppers for the proscribed goods have swollen the highways.
The legitimacy of Chapter 119 is further undermined by what may charitably be termed its uneven administration. The combination of its vague proscriptions and avowed recreation-promoting purpose has resulted in the anomaly that one may purchase sneakers on Sunday but not shoes. The absurdity of this state of affairs inevitably tends to breed contempt for our system of law and makes it difficult to realistically say that the relaxation object of the statute is advanced in any manner that can fairly be termed rational.
Finally, I would point out that today’s decision establishes only that this plaintiff has failed on this record to demonstrate Chapter 119’s unconstitutionality as applied. The Court’s stalwart defense of the statute should not deter a future attempt to meet the admittedly onerous but nevertheless not insurmountable burden of proof the majority has chosen to impose on those who would challenge that legislative excursion into benevolent paternalism.
In Robinson v. Cahill, 62 N. J. 473 (1973) cert. den. 414 U. S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973), Chief Justice Weintraub had occasion to condemn talismanic judicial alherence to the so-called “two tiered” analysis employed by the United States Supreme Court under which only those governmental actions impinging upon “fundamental” rights are subjected to- strict judicial scrutiny:
Mechanical approaches to the delicate problem of judicial intervention under either the equal protection or due process clauses may *371only divert a court from the meritorious issue or delay consideration of it. Ultimately, a court must weigh the nature of the restraint or the denial against the apparent public justification, ánd decide whether the State action is arbitrary. In that process, if the circumstances sensibly so require, the court may call upon the State to demonstrate the existence of a sufficient public need for the restraint or the denial.
[62 37. J. at 491-492 (citations omitted)]
The individual right implicated in the instant case, while perhaps not fundamental, is certainly one whose denial should receive more than the cursory review given today by the Court.