The constitutionality of Alaska's statute prohibiting possession of marijuana is put in issue in this case. Petitioner Ravin was arrested on October 11, 1972 and charged with violating AS 17.12.010.1 Before trial Ravin attacked the constitutionality of AS 17.12.010 by a motion to dismiss in which he asserted that the State had violated his right of privacy under both the federal and Alaska constitutions, …..”

497

Ravin's basic thesis is that there exists under the federal and Alaska constitutions a fundamental right to privacy, the scope of which is sufficiently broad to encompass and protect the possession of marijuana for personal use. Given this fundamental constitutional right, the State would then have the burden of demonstrating a compelling state interest in prohibiting possession of marijuana.

Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgement in question was justified by a compelling governmental interest.

This standard is familiar federal law as well. As stated by the United States Supreme Court: Where there is a significant encroachment upon personal liberty, the State May prevail only upon showing a subordinating interest which is compelling.Bates v. Little Rock, 361 U.S. 516, 524, The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy."5 McLaughlin v. Florida, 379 U.S. 184, 196,

[3] When, on the other hand, governmental action interferes with an individual's freedom in an area which is not characterized as fundamental, a less stringent test is ordinarily applied. …. Under this latter test, which is sometimes referred to as the "rational basis" test, the State [537 P.2d 494 ,498] need only demonstrate the existence of facts which can serve as a rational basis for belief that the measure would properly serve the public interest.

Snip 500

[5] These Supreme Court [Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)]. cases indicate to us that the federal right to privacy arises only in connection with other fundamental rights, such as the grouping of rights which involve the home. And even in connection with the penumbra of home-related rights, the right of privacy in the sense of immunity from prosecution is absolute only when the private activity will not endanger or harm the general public. Snip 501 502 ?

[6] Assuming this court were to continue to utilize the fundamental right-compelling state interest test in resolving privacy issues under article I, section 22 of Alaska's constitution, we would conclude that there is no a fundamental constitutional right to possess or ingest marijuana in Alaska. For in our view, the right to privacy amendment to the Alaska Constitution cannot be read so as to make the possession or ingestion of marijuana itself a fundamental right.

And, as mentioned previously, a discrete federal right of privacy separate from the penumbras of specifically enumerated constitutional rights has not as yet been articulated by the Supreme Court of the United States. Therefore, …..we would hold that there is no fundamental right, either under the Alaska or federal constitutions, either to possess or ingest marijuana.

503

The importance of the home has been amply demonstrated in constitutional law. Among the enumerated rights in the federal Bill of Rights are the guarantee against quartering of troops in a private house in peacetime (Thrid Amendment) and the right to be "secure in their . . . houses . . . against unreasonable searches and seizures . . . " (Fourth Amendment). The First Amendment has been held to protect the right to "privacy and freedom of association in the home."34 The Fifth Amendment has been described as providing protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."

The right to receive information and ideas was found in Stanley to take on an added dimension precisely because it was a prosecution for possession in the home: "For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy." 394 U.S. at 564,

In a later case, the Supreme Court noted that Stanley was not based on the notion that the obscene matter was itself protected by a constitutional penumbra of privacy, but rather was a "reaffirmation that 'a man's home is his castle.'"

[7] This court has consistently recognized that the home is constitutionally protected from unreasonable searches and seizures, reasoning that the home itself retains a protected status under the Fourth Amendment and Alaska's constitution distinct from that of the occupant's person. The privacy amendment to the Alaska Constitution was intended to give recognition and protection to the [537 P.2d 494, 504] home.

snip

[8-11] The home, then, carries with it associations and meanings which make it particularly important as the situs of privacy. Privacy in the home is a fundamental right, under both the federal and Alaska constitutions. …….When a matter does affect the public, directly or indirectly, it loses its wholly private character, and can be made to yield when an appropriate public need is demonstrated.

Thus, we conclude that citizens of the State of Alaska have a basic right to privacy in their homes under Alaska's constitution. This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.

This leads us to the second facet of our inquiry, namely, whether the State has demonstrated sufficient justification for the prohibition of possession of marijuana in general in the interest of public welfare; and further, whether the State has met the greater burden of showing a close and substantial relationship between the public welfare and control of ingestion or possession of marijuana in the home for personal use.

508

Possibly implicit in the State's catalogue of possible dangers of marijuana use is the assumption that the State has the authority to protect the individual from his own follow, that is, that the State can control activities which present no harm to anyone except those enjoying them. 509

[13, 14] We glean from these cases the general proposition that the authority of the state to exert control over the individual extends only to activities of the individual which affect others or the public at large Liggett Co. v Baldridge, 278 U.S. 105, 111-12, as it relates to matters of public health or safety, or to provide for the general welfare. We believe this tenet to be basic to a free society. The state cannot impose its own notions of morality, propriety, or fashion on individuals when the public has no legitimate interest in the affairs of those individuals. The right of the individual to do as he pleases is not absolute, of course: it can be made to yield when it begins to infringe on the rights and welfare of others.Roe v. Wade, 410 U.S. 113, 154

[15, 16]

It appears that effects of marijuana on the individual are not serious enough to justify widespread concern, at least as compared with the far more dangerous effects of alcohol, barbiturates [537 P.2d 494, 510] and amphetamines. Moreover, the current patterns of use in the United States are not such as would warrant concern that in the future consumption patterns are likely to change.64

511

Thus we conclude that no adequate justification for the state's intrusion into the citizen's right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual's home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied.

512

BOOCHEVER, Justice (concurring, with whom CONNOR, Justice, joins).

By its reliance on certain United States Supreme Court cases Stanley v. Georgia, 394 U.S. 557, (1969); Griswold v. Connecticut, 381 U.S. 479, (1965) and the manner in which some of the conclusions are set forth, the opinion may be read as limiting the right of privacy principally to protection of activities engaged in within the confines of the home. The opinion relies chiefly on United States Supreme Court precedent, although there is no Federal Constitutional provision corresponding to art. 1, § 22 of the Alaska Constitution which specifies that "the right of people to privacy is recognized and shall not be infringed". While Federal cases defining the right of privacy derived from other provisions of the United States Constitution are of assistance in determining the perimeters of our constitutional right to privacy, we are construing the separate Alaska provision.