dissenting:
I respectfully dissent.
As noted in the majority opinion, the facts in this case are not in dispute. Therefore, our only task is to determine whether the statutory provision in question violates Birdie L. Branson’s constitutional rights under the fourteenth amendment to the United States Constitution and article II, section 25, of the Colorado Constitution.
I agree with the majority that the standard of review by which section 31-30-509, 12 C.R.S. (1977), must be examined to determine whether the plaintiff has been deprived of equal protection of the law is the “rational basis standard.” I also agree that under this standard there is a presumption of constitutionality and the burden is on the plaintiff to establish its unconstitutionality beyond a reasonable doubt. However, I do not agree that Bran-son has met the burden of showing that the statutory classification is unreasonable and bears no rational relationship to legitimate state objectives. See at 340.
Both this court and the United States Supreme Court have often held that a statute is not constitutionally suspect or unreasonable on its face simply because it results in some inequality, or excludes one or more persons from its coverage. See, e.g., Dawson v. Public Employees’ Retirement Association, 664 P.2d 702, 709 (Colo.1983) (upholding distinction between children of prior marriage and children and surviving spouse of decedent for purposes of eligibility for pension benefits); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501-02 (1970) (rejecting a claim that Maryland welfare legislation violated the equal protection clause of the fourteenth amendment). In consequence, the proper scope of inquiry under the rational basis test is quite limited: “we ask only whether it is conceivable that the classification established by the legislation bears a rational relationship to a permissible governmental purpose.” Torres v. Por-tillos, 638 P.2d 274, 276 (Colo.1981) (statute providing for award of attorney’s fees to tenant in a landlord-tenant dispute reflected a legitimate legislative purpose) (emphasis supplied). The party challenging a statute bears the entire burden of proving that the classification is without rational basis:
[Where there is no suspect classification and where no fundamental right is implicated], a statutory classification is entitled to the usual presumption of validity and the individual carrying the attack has the burden of showing that it fails to rationally further any legitimate state purpose.
*342Harding v. Industrial Commission, 183 Colo. 52, 62, 515 P.2d 95, 100 (1973) (upholding the constitutionality of the “better job provision” under the Colorado Employment Security Act). Recently, we held that even a showing that a statutory classification is poorly fitted to the legislature’s purpose does not meet the burden of proving unconstitutionality:
In challenging the constitutionality of a state statute on equal protection grounds, it is insufficient to establish that some effects of the legislation may be counterproductive to the aims of the legislation. Rather, one must demonstrate that no rational relation exists between the goals and the effects of the statute.
Colorado Department of Social Services v. Board of County Commissioners, 697 P.2d 1, 15 (Colo.1985) (held that funding provisions of the state social services code are rationally related to the legitimate purposes of the code).
The majority’s holding that Branson has met the burden established by the rational basis test, because none of the reasons advanced by Denver fully explain the distinction drawn by the legislature is not supported by any reasoned analysis and is conclusive in nature.
While police work and firefighting are both admittedly risky occupations, the risks produced by these professions differ qualitatively. It therefore is not unreasonable for the legislature to enact different pension provisions for the two occupations.
In addition to facing risks that differ qualitatively from those of other professions, firefighters also face risks that vary from location to location. As the City points out, the high-rise buildings and densely populated neighborhoods found in urban areas produce dangers that are uncommon in rural areas. Exposure to toxic chemicals and the ensuing long-term health risks are also more likely in industrial and commercial centers. Indeed, urban and rural firefighters face such different risks and encounter such different working conditions that it is not unreasonable for the legislature to treat urban and nonurban firefighters in a different manner. In this light, a decision to provide different pension terms is both rational and appropriate.
In the area of firefighter pensions, this court has specifically held that classifications based on the population of a municipal corporation provide a reasonable basis for legislative classification:
We have held many times that the population of municipal corporations affords a reasonable basis for legislative classification in the passage of statutes thereto
Bedwell v. Board of Trustees, Firemen’s Pension Fund, 114 Colo. 475, 478, 166 P.2d 994, 996 (1946) (upholding provisions of the 1903 Fireman’s Pension Act relating to firemen in cities of over 100,000 population). In light of this clear precedent, and the unique working conditions experienced in large urban fire departments, I cannot agree with the majority’s finding that the differences between police officers and firefighters, and the differences between large and small fire departments, do not provide a rational basis for the legislature’s classification scheme.
The majority also passes over the City’s argument that, unlike pre-retirement spouses, post-retirement spouses do not share the daily hazards of a firefighter’s active duty. At 340. The day-to-day risk of death or permanent disability that is inherent in fighting fires puts a strain on all members of a firefighter’s family. The legislature’s decision to extend pension benefits to spouses who have shared this risk helps alleviate the resulting stress by assuring the firefighter that his spouse will be provided for in the event of death or disabling injury. But, the act of the legislature in choosing to extend the pre-retirement spouse’s benefits beyond the death of the firefighter does not provide a rationale for extending pension coverage to post-retirement spouses, a class of beneficiaries that has not shared in the firefighter’s day-to-day risks.
In its analysis of the governmental goal of fiscal certainty, the majority finds that *343the statutory scheme “does not serve the legislative goal of fiscal certainty in a rational way.” At 341. In support of this conclusion, it notes that since the statute does not exclude children who were born after the fireman’s retirement “fiscal certainty” is thus destroyed. At 341.
This argument proves too much. Clearly, because one class may be benefited, persons of another class cannot legitimately claim that they are denied equal protection because they are not equally benefited:
[W]ith respect to legislative classifications, a statute is not constitutionally suspect simply because distinctions are not made with “mathematical nicety” or because they result “in some inequality.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501-02 (1970). The problems of government are practical ones and often justify, if not require, a rough accommodation of variant interests. See Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976).
Dawson v. Public Employees’ Retirement Association, 664 P.2d 702, 708 (Colo.1983) (distinction between children of surviving spouse and decedent’s children by former spouse under statutes governing the Public Employee Retirement Association upheld against equal protection challenge).
Moreover, while the fiscal uncertainties posed by post-retirement children and post-retirement spouses may seem similar at first glance, a closer analysis reveals that they may be problems of very different magnitude. Although the common law has long presumed that persons of any age are capable of conceiving children, we know as a practical matter that the vast majority of children are born to parents who are relatively young. Since the risks against which disability pensions provide some measure of protection are cumulative, it seems more likely than not that most firefighters receive disability retirement pensions at an age when they no longer plan to have children. The possibility that retired firefighters will have additional children therefore adds little uncertainty to the pension system. Seen in this light, the legislature’s decision not to exclude children bom after retirement adds few potential claimants to the pension fund.
Post-retirement marriages, on the other hand, are likely to impose a substantial burden on any pension system. While having children normally occurs in the first few decades of adulthood, divorce, the death of a spouse, and the possibility that a person may not marry until late in life all make marriage a common occurrence at any point in an adult’s life. In addition, injuries and other physical disabilities that might prevent a firefighter from conceiving children would not make it impossible for the firefighter to marry. In a large urban fire department, an ability to add post-retirement spouses with no reduction in benefit levels would greatly increase the period over which a firefighter’s benefits are disbursed. As the City points out, under the statute before us it was clear that
when an unmarried firefighter retires, it is known that his benefits will terminate with his death and the continuation of benefits will not be extended for the span of another’s lifetime. If this is open to change at any time by the acquisition of a post-retirement spouse, there is less certainty as to what financial liabilities will be incurred.
Indeed, the legislature clearly recognized that extending benefits to post-retirement spouses increased the financial burdens on the pension fund when it modified the pension statute in 1979. Under the amended provisions, a firefighter may now choose to extend pension benefits to a post-retirement spouse only by electing to accept reduced pension benefits. Section 31-30-1007(5)(b)(I), 12 C.R.S. (1984 Supp.), reprinted in majority opinion, at 839 n.3. The extension of benefits to post-retirement spouses without a corresponding decrease in the amount of the firefighter’s periodic pension would increase the City’s overall pension liability. Since the applicable statute has no provision for electing reduced payments, an extension of benefits *344to post-retirement spouses would indeed reduce fiscal certainty.
Since I believe that the trial court correctly ruled that the plaintiff failed to meet the burden of proving unconstitutionality under the rational basis test and that the justifications asserted by the City provide a reasonable basis for the legislative classification, I would affirm the decision of the district court.
I am authorized to say that Justice ERICKSON and Justice KIRSHBAUM join in this dissent.