Kentucky v. Wasson – Substantive Due Process

Kentucky v. Wasson

842 S.W.2d 487 (Ky. 1992)

Leibson, Justice.

Appellee, Jeffrey Wasson, is charged with having solicited an undercover Lexington policeman to engage in deviate sexual intercourse. KRS 510.100 punishes “deviate sexual intercourse with another person of the same sex” as a criminal offense, and specifies “consent of the other person shall not be a defense.” Nor does it matter that the act is private and involves a caring relationship rather than a commercial one. It is classified as a Class A misdemeanor.

[Wasson] is actually charged [with solicitation]. . . . The issue here is whether KRS 510.100, which defines the underlying criminal offense, is constitutional. . . .

Both courts below decided the issues solely on state constitutional law grounds, and our decision today, affirming the judgments of the lower courts, is likewise so limited. Federal constitutional protection under the Equal Protection Clause was not an issue reached in the lower courts and we need not address it. Bowers v. Hardwick (1986) held federal constitutional protection of the right of privacy was not implicated in laws penalizing homosexual sodomy. We discuss Bowers in particular, and federal cases in general, not in the process of construing the United States Constitution or federal law, but only where their reasoning is relevant to discussing questions of state law. . . .

Lexington police were conducting a downtown undercover operation. Their modus operandi was to drive to a certain parking area, in plain clothes with microphones on their persons, and try to engage in conversation with persons passing by to see whether they would be solicited for sexual contact. The taped conversation between the undercover officer and Wasson covered approximately 20–25 minutes, toward the end of which Wasson invited the officer to “come home” to his residence. The officer then prodded Wasson for details, and Wasson suggested sexual activities which violated KRS 510.100. There was no suggestion that sexual activity would occur anyplace other than in the privacy of Wasson’s home. The sexual activity was intended to have been between consenting adults. No money was offered or solicited.

Seven expert witnesses testified in support of Wasson’s case: (1) a cultural anthropologist testified about the presence of homosexuals in every recorded human culture, including societies where they were rejected and those where they have been tolerated or even welcomed; (2) a Presbyterian minister discussed Biblical references, providing a modern interpretation that these references were not an indictment of homosexuals as such, but rather statements against aggression, inhospitality and uncaring relationships; (3) a social historian testified about the presence of homosexuals throughout the history of the United States, despite what was at times exceptionally strict punishment for homosexual acts; (4) a sociologist and sex researcher (a co-author of the Kinsey Report on homosexual behavior) testified that studies indicated “‘homosexuality’ is just as deep-rooted as ‘heterosexuality’,” that it is not a choice and there is no “cure” for it, and that sexual acts prohibited to homosexuals by KRS 510.100, oral and anal sex, are practiced widely by heterosexuals; (5) a psychologist testified that homosexuality is no longer classified as a personality disorder by either the American Psychological Association or the American Psychiatric Association, and further, rather than being in and of themselves either harmful or pathological, the sexual acts outlawed by KRS 510.100 are a necessary adjunct to their sex life; (6) a therapist from a comprehensive care treatment center in Lexington, with fourteen years’ experience counseling homosexual clients, testified that the statute criminalizing their sexual activities has an adverse impact on homosexuals and interferes with efforts to provide therapy to those who may need it; and (7) the Professor of Medicine at the University of Louisville, Chief of the Infectious Diseases section, testified at length about the origins and spread of AIDS, expressing the opinion that the statute in question offers no benefit in preventing the spread of the disease and can be a barrier to getting accurate medical histories, thus having an adverse effect on public health efforts.

The testimony from Wasson’s expert witnesses is further substantiated by extensive citations to medical and social science literature and treatises supplied in Amicus Curiae Briefs filed by national and state associations of psychologists and clinical social workers, various national and state public health associations, and organizations covering a broad spectrum of religious denominations.

The Commonwealth, on the other hand, presented no witnesses and offers no scientific evidence or social science data. Succinctly stated, its position is that the majority, speaking through the General Assembly, has the right to criminalize sexual activity it deems immoral, without regard to whether the activity is conducted in private between consenting adults and is not, in and of itself, harmful to the participants or to others; that, if not in all instances, at least where there is a Biblical and historical tradition supporting it, there are no limitations in the Kentucky Constitution on the power of the General Assembly to criminalize sexual activity these elected representatives deem immoral.

The Commonwealth maintains that the United States Supreme Court’s decision in Bowers v. Hardwick is dispositive of the right to privacy issue; that the “Kentucky Constitution did not intend to confer any greater right to privacy than was afforded by the U.S. Constitution.” Turning to the equal protection argument raised by a statute which criminalizes oral or anal intercourse between persons of the same sex, but not between persons of different sexes, which was not addressed in the Bowers case, the Commonwealth argues there is “a rational basis for making such a distinction.” To support this argument the Commonwealth takes bits and pieces from the testimony of Wasson’s expert witnesses out of context and disregards their overwhelming evidence to the contrary. The thrust of the argument advanced by the Commonwealth as a rational basis for criminalizing consensual intercourse between persons of the same sex, when the same acts between persons of the opposite sex are not punished, is that the level of moral indignation felt by the majority of society against the sexual preference of homosexuals justifies having their legislative representatives criminalize these sexual activities. The Commonwealth believes that homosexual intercourse is immoral, and that what is beyond the pale of majoritarian morality is beyond the limits of constitutional protection. . . .

A significant part of the Commonwealth’s argument rests on the proposition that homosexual sodomy was punished as an offense at common law, that it has been punished by statute in Kentucky since 1860, predating our Kentucky Constitution. Indeed, in Bowers v. Hardwick, the United States Supreme Court takes note of the original Kentucky statute codifying the common law found at 1 Ky. Rev. Stat., Ch. 28, Art. IV, § 11 (1860). This, of course, would lend credence to the historical and traditional basis for punishing acts of sodomy, but for the fact that “sodomy” as defined at common law and in this 1860 statute is an offense significantly different from KRS 510.100, limited to anal intercourse between men. Unlike the present statute our common law tradition punished neither oral copulation nor any form of deviate sexual activity between women. The definitive Kentucky case on the subject is Commonwealth v. Poindexter (Ky. 1909), summarizing the common law and statutory background, and holding: “A penetration of the mouth is not sodomy.” . . .

Thus the statute in question here punishes conduct which has been historically and traditionally viewed as immoral, but much of which has never been punished as criminal. . . .

For reasons that follow, we hold the guarantees of individual liberty provided in our 1891 Kentucky Constitution offer greater protection of the right of privacy than provided by the Federal Constitution as interpreted by the United States Supreme Court, and that the statute in question is a violation of such rights; and, further, we hold that the statute in question violates rights of equal protection as guaranteed by our Kentucky Constitution.


No language specifying “rights of privacy,” as such, appears in either the Federal or State Constitution. The Commonwealth recognizes such rights exist, but takes the position that, since they are implicit rather than explicit, our Court should march in lock step with the United States Supreme Court in declaring when such rights exist. Such is not the formulation of federalism. On the contrary, under our system of dual sovereignty, it is our responsibility to interpret and apply our state constitution independently. We are not bound by decisions of the United States Supreme Court when deciding whether a state statute impermissibly infringes upon individual rights guaranteed in the State Constitution so long as state constitutional protection does not fall below the federal floor, meaning the minimum guarantee of individual rights under the United States Constitution as interpreted by the United States Supreme Court. Oregon v. Hass (1975). The holding in Oregon v. Hass is: “[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this [United States Supreme] Court holds to be necessary upon federal constitutional standards.”

Contrary to popular belief, the Bill of Rights in the United States Constitution represents neither the primary source nor the maximum guarantee of state constitutional liberty. Our own constitutional guarantees against the intrusive power of the state do not derive from the Federal Constitution. The adoption of the Federal Constitution in 1791 was preceded by state constitutions developed over the preceding 15 years, and, while there is, of course, overlap between state and federal constitutional guarantees of individual rights, they are by no means identical. State constitutional law documents and the writings on liberty were more the source of federal law than the child of federal law. . . .

Thus, while we respect the decisions of the United States Supreme Court on protection of individual liberty, and on occasion we have deferred to its reasoning, certainly we are not bound to do so, and we should not do so when valid reasons lead to a different conclusion.

We are persuaded that we should not do so here for several significant reasons. First, there are both textual and structural differences between the United States Bill of Rights and our own, which suggest a different conclusion from that reached by the United States Supreme Court is more appropriate. More significantly, Kentucky has a rich and compelling tradition of recognizing and protecting individual rights from state intrusion in cases similar in nature, found in the Debates of the Kentucky Constitutional Convention of 1890 and cases from the same era when that Constitution was adopted. The judges recognizing that tradition in their opinions wrote with a direct, firsthand knowledge of the mind set of the constitutional fathers, upholding the right of privacy against the intrusive police power of the state. This tradition is formulated in ringing terms in the opinion of this Court in Commonwealth v. Campbell (Ky. 1909), [and other cited cases].

Kentucky cases recognized a legally protected right of privacy based on our own constitution and common law tradition long before the United States Supreme Court first took notice of whether there were any rights of privacy inherent in the Federal Bill of Rights. . . .

[S]tate constitutional jurisprudence in this area is not limited by the constraints inherent in federal due process analysis. Deviate sexual intercourse conducted in private by consenting adults is not beyond the protections of the guarantees of individual liberty in our Kentucky Constitution simply because “proscriptions against that conduct have ancient roots.” Bowers v. Hardwick. Kentucky constitutional guarantees against government intrusion address substantive rights. . . .

The Commonwealth has stressed that there was no discussion of the right of privacy at the 1890 Kentucky Constitutional Convention, but that is only partly true. The meaning of Sections One and Two as they apply to personal liberty is found in the remarks of J. Proctor Knott of Marion County (see Official Report of the Proceedings and Debates in the 1890 Convention, E. Polk Johnson, Vol. 1, p. 718): “[T]hose who exercise that power in organized society with any claim of justice, derive it from the people themselves. That with the whole of such power residing in the people, the people as a body rest under the highest of all moral obligations to protect each individual in the rights of life, liberty, and the pursuit of happiness, provided that he shall in no wise injure his neighbor in so doing” (emphasis added). See also Comments of Delegate J.A. Brents from Clinton County. Debates, Vol. 1, p. 614–18, concluding “majorities cannot and ought not exercise arbitrary power over the minority.”

The leading case on this subject is Commonwealth v. Campbell. At issue was an ordinance that criminalized possession of intoxicating liquor, even for “private use.” Our Court held that the Bill of Rights in the 1891 Constitution prohibited state action thus intruding upon the “inalienable rights possessed by the citizens” of Kentucky.

Our Court interpreted the Kentucky Bill of Rights as defining a right of privacy, even though the constitution did not say so in that terminology:

Man in his natural state has the right to do whatever he chooses and has the power to do. When he becomes a member of organized society, under governmental regulation, he surrenders, of necessity, all of his natural right the exercise of which is, or may be, injurious to his fellow citizens. This is the price that he pays for governmental protection, but it is not within the competency of a free government to invade the sanctity of the absolute rights of the citizen any further than the direct protection of society requires. . . . It is not within the competency of government to invade the privacy of a citizen’s life and to regulate his conduct in matters in which he alone is concerned, or to prohibit him any liberty the exercise of which will not directly injure society. Id. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. Id.

The Court concludes: “The theory of our government is to allow the largest liberty to the individual commensurate with the public safety, or, as it has been otherwise expressed, that government is best which governs least. Under our institutions there is no room for that inquisitorial and protective spirit which seeks to regulate the conduct of men in matters in themselves indifferent, and to make them conform to a standard, not of their own choosing, but the choosing of the lawgiver. . . .”

The right of privacy has been recognized as an integral part of the guarantee of liberty in our 1891 Kentucky Constitution since its inception. The Campbell case is overwhelming affirmation of this proposition:

[W]e are of the opinion that it never has been within the competency of the Legislature to so restrict the liberty of this citizen, and certainly not since the adoption of the present [1891] Constitution. The Bill of Rights, which declares that among the inalienable rights possessed by the citizens is that of seeking and pursuing their safety and happiness, and that the absolute and arbitrary power over the lives, liberty, and property of freeman exists nowhere in a republic, not even in the largest majority, would be but an empty sound if the Legislature could prohibit the citizen the right of owning or drinking liquor, when in so doing he did not offend the laws of decency by being intoxicated in public. . . .

At the time Campbell was decided, the use of alcohol was as much an incendiary moral issue as deviate sexual behavior in private between consenting adults is today. Prohibition was the great moral issue of its time. It was addressed both in the 1891 Constitution and in the 19th Amendment of the United States Constitution. In 1907, in Board of Trustees of Town of New Castle v. Scott (Ky. 1907), Chief Justice O’Rear passionately attacked the evil of alcohol in a pro-prohibition ruling interpreting § 61 of the Kentucky Constitution, which provides for local option elections. He stated: “There is yet another view of the subject which we must assume was in the mind of the Convention. The liquor traffic had then [in 1891] come to be regarded as one of the most serious evils of the age, if not the most sinister menace to society that was known. . . . No other subject had been more clearly settled upon as being within the legitimate exercise of the police power of the state than the regulation of the sale and use of intoxicating liquors.” Id.

Notwithstanding their strong views that drinking was immoral, this same Court with these same judges, including Judge O’Rear, in the Campbell case recognized that private possession and consumption of intoxicating liquor was a liberty interest beyond the reach of the state. . . .

The clear implication is that immorality in private which does “not operate to the detriment of others,” is placed beyond the reach of state action by the guarantees of liberty in the Kentucky Constitution. . . .

In the area of civil law, Kentucky has been in the forefront in recognizing the right of privacy. In 1909, our Court stepped outside traditional libel law and recognized invasion of privacy as a tort in Foster-Milburn Co. v. Chinn (Ky. App. 1909). Then in 1927, in Brents v. Morgan (Ky. App. 1927) our Court defined this emerging right as “the right to be left alone, that is, the right of a person to be free from unwarranted publicity, or the right to live without unwarranted interference by the public about matters with which the public is not necessarily concerned.”

The right of privacy is incident to the person and not to property. . . . It is considered as a natural and an absolute or pure right springing from the instincts of nature. It is of that class of rights which every human being has in his natural state and which he did not surrender by becoming a member of organized society. The fundamental rights of personal security and personal liberty, include the right of privacy, the right to be left alone. . . . The right to enjoy life [Ky. Const., § 1, first subpart] in the way most agreeable and pleasant, and the right of privacy is nothing more than a right to live in a particular way. Id. . . .

In the Campbell case our Court quoted at length from the “great work” On Liberty of the 19th century English philosopher and economist, John Stuart Mill. We repeat the quote in part: “The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. . . . The principle requires liberty of taste and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow; without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong.”

Mill’s premise is that “physical force in the form of legal penalties,” i.e., criminal sanctions, should not be used as a means to improve the citizen. The majority has no moral right to dictate how everyone else should live. Public indignation, while given due weight, should be subject to the overriding test of rational and critical analysis, drawing the line at harmful consequences to others. Modern legal philosophers who follow Mill temper this test with an enlightened paternalism, permitting the law to intervene to stop self-inflicted harm such as the result of drug taking, or failure to use seat belts or crash helmets, not to enforce majoritarian or conventional morality, but because the victim of such self-inflicted harm becomes a burden on society. See Introduction to Jurisprudence, 4th ed, p. 59 (1979) by Lord Lloyd of Hampstead.

Based on the Campbell opinion, and on the Comments of the 1891 Convention Delegates, there is little doubt but that the views of John Stuart Mill, which were then held in high esteem, provided the philosophical underpinnings for the reworking and broadening of protection of individual rights that occurs throughout the 1891 Constitution.

We have recognized protection of individual rights greater than the federal floor in a number of cases. . . . In so doing we stated: “We have decided this case solely on the basis of our Kentucky Constitution. . . . We find it unnecessary to inject any issues raised under the United States Constitution or the United States Bill of Rights in this matter.”. . . .

We view the United States Supreme Court decision in Bowers v. Hardwick as a misdirected application of the theory of original intent. To illustrate: as a theory of majoritarian morality, miscegenation was an offense with ancient roots. It is highly unlikely that protecting the rights of persons of different races to copulate was one of the considerations behind the 14th Amendment. Nevertheless, in Loving v. Virginia (1967), the United States Supreme Court recognized that a contemporary, enlightened interpretation of the liberty interest involved in the sexual act made its punishment constitutionally impermissible.

According to Bowers v. Hardwick, “until 1961, all 50 States outlawed sodomy, and today, 25 States and District of Colombia continue to provide criminal penalties for sodomy performed in private and between consenting adults.” In the space of three decades half the states decriminalized this conduct, some no doubt in deference to the position taken by the American Law Institute in the Model Penal Code, § 213.2: “Section 213.2 of the Model Code makes a fundamental departure from prior law in excepting from criminal sanctions deviate sexual intercourse between consenting adults.” American Law Institute, Model Penal Code and Commentaries, Part II, 1980 Ed., pp. 362–63.

The usual justification for laws against such conduct is that, even though it does not injure any identifiable victim, it contributes to moral deterioration of society. One need not endorse wholesale repeal of all ‘victimless’ crimes in order to recognize that legislating penal sanctions solely to maintain widely held concepts of morality and aesthetics is a costly enterprise. It sacrifices personal liberty, not because the actor’s conduct results in harm to another citizen but only because it is inconsistent with the majoritarian notion of acceptable behavior. In the words of the Wolfenden Report, the decisive factor favoring decriminalization of laws against private homosexual relations between consenting adults is “the importance which society and the law ought to give to individual freedom of choice and action in matters of private morality.” Id. at 371–72.

Two states by court decisions hold homosexual sodomy statutes of this nature unconstitutional for reasons similar to those stated here: New York in People v. Onofre (N.Y. 1980); and Pennsylvania in Commonwealth v. Bonadio (Pa. 1980). There are two other states where lower courts have ruled such statutes unconstitutional: Texas v. Morales (Tex. App. 1992); Michigan Organization for Human Rights v. Kelly (Mich., Wayne Cnty. Cir. Ct. 1990). Thus our decision, rather than being the leading edge of change, is but a part of the moving stream.

The Bonadio case from Pennsylvania is particularly noteworthy because of the common heritage shared by the Kentucky Bill of Rights of 1792 and the Pennsylvania Bill of Rights of 1790. . . .

[The remainder of the Court’s discussion, including its discussion of equal protection under the Kentucky Constitution, is omitted.]

For the reasons stated, we affirm the decision of the Fayette Circuit Court, and the judgment on appeal from the Fayette District Court [and invalidate the statute].

Lambert, Justice, dissenting.

The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.

To justify its view that private homosexual conduct is protected by the Constitution of Kentucky, the majority has found it necessary to disregard virtually all of recorded history, the teachings of the religions most influential on Western Civilization [here the dissent dropped a footnote citing Leviticus 20:13; Romans 1:26–27], the debates of the delegates to the Constitutional Convention, and the text of the Constitution itself. Rather than amounting to a decision based upon precedent as is suggested, this decision reflects the value judgment of the majority and its view that public law has no right to prohibit the conduct at issue here.

The majority concedes that “‘proscriptions against that conduct [sodomy] have ancient roots.'” It fails, however, to describe the depth of such roots as was done in Bowers v. Hardwick (1986): “Sodomy was a criminal offense at common law which was forbidden by the laws of the original 13 States when they ratified the Bill of Rights.” Chief Justice Burger elaborated upon the historical condemnation of sodomy as follows:

Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western Civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature” and “a crime not fit to be named.” . . . To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

The history and traditions of this Commonwealth are fully in accord with the Biblical, historical and common law view. Since at least 1860, sodomy has been a criminal offense in Kentucky and this fact was well known to the delegates at the time of the 1890 Constitutional Convention.

Embracing “state constitutionalism,” a practice in vogue among many state courts as a means of rejecting the leadership of the Supreme Court of the United States, the majority has declared its independence from even the influence of this nation’s highest court. The majority cannot, however, escape the logic and scholarship of Bowers which reached the conclusion that nothing in the Due Process Clause of the United States Constitution prevented a state from punishing sodomy as a crime. While I do not advocate the view that state courts should march in lock step with the Supreme Court of the United States, on those occasions when state courts depart from that Court’s reasoned interpretations, it should be for compelling reasons, usually text or tradition, and only in clearly distinguishable circumstances, none of which are present here.

The majority also concedes that the debates of the Kentucky Constitutional Convention of 1890 contain no mention of a right of privacy or a right to engage in homosexual sodomy. It rationalizes this fact by indicating that the concept was not articulated until publication of an article by Warren and Brandeis in the Harvard Law Review on December 15, 1890. According to the majority, the delegates to the Constitutional Convention intended to create such a right but lacked the verbal skills to devise a phrase so complicated as “right of privacy.” For whatever reason, the debates contain only the most limited and inexplicit reference to any concept which could be translated into privacy. . . .

[The rest of this dissenting opinion and the other dissents are omitted. ]