Kentucky v. Wasson – Equal Protection

Kentucky v. Wasson

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

Leibson, Justice. . . . [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.] . . .

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 v. Hardwick case (1986), the Commonwealth argues there is “a rational basis for making such a distinction.” 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.

At the outset the subject is made difficult by a confusion of terms. KRS 510.100 is styled a “sodomy” statute, but its reach is not limited to the Biblical or traditional common law definition of the term. It punishes “deviate sexual intercourse with another of the same sex.” “Deviate sexual intercourse” is defined in KRS 510.010(1) as including “any act of sexual gratification involving the sex organs of one (1) person and the mouth or anus of another[.]”

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, Sec. 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.”

In Poindexter two men were charged with sodomy “committed by the insertion of the private part of the one into the mouth of the other.” The trial court dismissed the indictment as failing to state an offense, and our Court affirmed. . . .

The Commentary to the Penal Code enacted in 1974 points out: “Under former Kentucky law penetration of the mouth was not sufficient. . . . Sodomy in the fourth degree . . . broadens former Kentucky law by including oral copulation.” Commentary, KRS 510.070.

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.

The grounds stated by the District Court for striking down the statute as unconstitutional are: “KRS 510.100 clearly seeks to regulate the most profoundly private conduct and in so doing impermissibly invades the privacy of the citizens of this state. Having so found, the Court need not address the other issues raised by the parties.”

The Order expressing the judgment of the Fayette Circuit Court “agree[d] with that conclusion,” and further held the statute “unjustifiably discriminates, and thus is unconstitutional under Sections 2 and 3 of our Kentucky Constitution.” These Sections are: “§ 2. Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority. § 3. All men, when they form a social compact, are equal. . . .” . . .

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. . . .


As stated earlier, in Bowers v. Hardwick, the Equal Protection Clause was not implicated because the Georgia statute criminalized both heterosexual and homosexual sodomy. Unlike the Due Process Clause analysis provided in Bowers v. Hardwick, equal protection analysis does not turn on whether the law (KRS 510.100), transgresses “liberties that are ‘deeply rooted in this Nation’s history and tradition.'”

In Watkins v. United States Army (9th Cir. 1989), involving the constitutionality of an Army regulation which made homosexuality a nonwaivable disqualification for reenlistment, Judge Norris, concurring in the judgment, explained the difference between Due Process Clause analysis and Equal Protection Clause analysis, as follows:

The due process clause, as the Court recognized in Hardwick, protects practices which are “deeply rooted in this Nation’s history and tradition.” The Equal Protection Clause, in contrast, protects minorities from discriminatory treatment at the hands of the majority. Its purpose is not to protect traditional values and practices, but to call into question such values and practices when they operate to burden disadvantaged minorities (emphasis original). . . . The Equal Protection Clause, by contrast . . . protect[s] disadvantaged groups from discriminatory practices, however deeply ingrained and long-standing.

Further explaining:

It is perfectly consistent to say that homosexual sodomy is not a practice so deeply rooted in our traditions as to merit due process protection, and at the same time to say, for example, that because homosexuals have historically been subject to invidious discrimination, laws which burden homosexuals as a class should be subjected to heightened scrutiny under the equal protection clause. . . .

Certainly, the practice of deviate sexual intercourse violates traditional morality. But so does the same act between heterosexuals, which activity is decriminalized. Going one step further, all sexual activity between consenting adults outside of marriage violates our traditional morality. The issue here is not whether sexual activity traditionally viewed as immoral can be punished by society, but whether it can be punished solely on the basis of sexual preference.

The Commonwealth’s argument against permitting sexual behavior preferred by homosexuals the protection of the Equal Protection Clause has centered solely on denying homosexuals status as a protected class, claiming society has a right to discriminate so long as such discrimination is not race related or gender related and this law punishes the act and not the preference of the actor. In American Constitutional Law, 2d ed. 1988, Laurence H. Tribe, p. 1616, the author answers the Commonwealth’s claims:

Not only is the characteristic of homosexuality or heterosexuality central to the personal identities of those singled out by laws based on sexual orientation, but homosexuals in particular seem to satisfy all of the Court’s implicit criteria of suspectness. As subjects of age-old discrimination and disapproval, homosexuals form virtually a discrete and insular minority. Their sexual orientation is in all likelihood “a characteristic determined by causes not within [their] control” (noting Mathews v. Lucas (1976), describing illegitimacy), and is, if not immutable, at least “extremely difficult to alter” (noting The Constitutionality of Laws Forbidding Private Homosexual Conduct, 72 Mich. L. Rev. 1613, 1626 (1974)).

Professor Tribe’s view is fully supported, not only by his own documentation, but by the testimony of record in this case and by the medical, scientific and social science data provided in the briefs filed herein by Amici Curiae. The truth is, one’s sexual partner is chosen usually, if not exclusively, based on sexual orientation. We cannot deny the evidence before us in analyzing how our state constitution should apply.

We do not speculate on how the United States Supreme Court as presently constituted will decide whether the sexual preference of homosexuals is entitled to protection under the Equal Protection Clause of the Federal constitution. We need not speculate as to whether male and/or female homosexuals will be allowed status as a protected class if and when the United States Supreme Court confronts this issue. They are a separate and identifiable class for Kentucky constitutional law analysis because no class of persons can be discriminated against under the Kentucky Constitution. All are entitled to equal treatment, unless there is a substantial governmental interest, a rational basis, for different treatment. The statute before us is in violation of Kentucky constitutional protection in Section Three that “all men (persons), when they form a social compact, are equal,” and in Section Two that “absolute and arbitrary power over the lives, liberty and property of free men (persons) exist nowhere in a republic, not even in the largest majority.” We have concluded that it is “arbitrary” for the majority to criminalize sexual activity solely on the basis of majoritarian sexual preference, and that it denied “equal” treatment under the law when there is no rational basis, as this term is used and applied in our Kentucky cases.

In Tabler v. Wallace (Ky. 1986), we applied the Kentucky Constitution to strike down a statute creating a statute of repose for persons engaged in the construction industry. Addressing the equal protection provisions found in Kentucky Constitution Sections Two and Three, as enhanced by Sections 59 and 60, we stated: “[T]he Kentucky Constitution . . . is much more detailed and specific than the Equal Protection Clause of the Federal Constitution.” Id. at 183. . . .”The fundamental question is whether the General Assembly has a reasonable basis for this legislation sufficient to justify creating a separate classification for certain persons. . . .” Id. at 185. More recently, in Perkins v. Northeastern Log Homes (Ky. 1991), we stated:

Many [states] have general protection against “arbitrary power” as we have in Kentucky Constitution § 2, and guarantees of “equal” rights and protection against “grant” of “separate . . . privileges” as we have in Kentucky Constitution § 3. But few have additional protection against local and special legislation as we have in Kentucky Constitution § 59. So far as we can determine, none has anything like the combination of broad constitutional protection of individual rights against legislative interference vouchsafed by our 1891 Kentucky Constitution. . . .

The Commonwealth has tried hard to demonstrate a legitimate governmental interest justifying a distinction, but has failed. Many of the claimed justifications are simply outrageous: that “homosexuals are more promiscuous than heterosexuals, . . . that homosexuals enjoy the company of children, and that homosexuals are more prone to engage in sex acts in public.” The only proffered justification with superficial validity is that “infectious diseases are more readily transmitted by anal sodomy than by other forms of sexual copulation.” But this statute is not limited to anal copulation, and this reasoning would apply to male-female anal intercourse the same as it applies to male-male intercourse. The growing number of females to whom AIDS (Acquired Immune Deficiency Syndrome) has been transmitted is stark evidence that AIDS is not only a male homosexual disease. The only medical evidence in the record before us rules out any distinction between male-male and male-female anal intercourse as a method of preventing AIDS. The act of sexual contact is not implicated, per se, whether the contact is homosexual or heterosexual. In any event, this statute was enacted in 1974 before the AIDS nightmare was upon us. It was 1982 or 1983 before AIDS was a recognized diagnostic entity.

In the final analysis we can attribute no legislative purpose to this statute except to single out homosexuals for different treatment for indulging their sexual preference by engaging in the same activity heterosexuals are now at liberty to perform. By 1974 there had already been a sea change in societal values insofar as attaching criminal penalties to extramarital sex. The question is whether a society that no longer criminalizes adultery, fornication, or deviate sexual intercourse between heterosexuals, has a rational basis to single out homosexual acts for different treatment. Is there a rational basis for declaring this one type of sexual immorality so destructive of family values as to merit criminal punishment whereas other acts of sexual immorality which were likewise forbidden by the same religious and traditional heritage of Western civilization are now decriminalized? If there is a rational basis for different treatment it has yet to be demonstrated in this case. We need not sympathize, agree with, or even understand the sexual preference of homosexuals in order to recognize their right to equal treatment before the bar of criminal justice.

To be treated equally by the law is a broader constitutional value than due process of law as discussed in the Bowers case. We recognize it as such under the Kentucky Constitution, without regard to whether the United States Supreme Court continues to do so in federal constitutional jurisprudence. “Equal Justice Under Law” inscribed above the entrance to the United States Supreme Court, expresses the unique goal to which all humanity aspires. In Kentucky it is more than a mere aspiration. It is part of the “inherent and inalienable” rights protected by our Kentucky Constitution. Our protection against exercise of “arbitrary power over the . . . liberty . . . of freemen” by the General Assembly (Section Two) and our guarantee that all persons are entitled to “equal” treatment (in Section Three) forbid a special act punishing the sexual preference of homosexuals. It matters not that the same act committed by persons of the same sex is more offensive to the majority because Section Two states such “power . . . exists nowhere in a republic, not even in the largest majority.”

The purpose of the present statute is not to protect the marital relationship against sexual activity outside of marriage, but only to punish one aspect of it while other activities similarly destructive of the marital relationship, if not more so, go unpunished. Sexual preference, and not the act committed, determines criminality, and is being punished. Simply because the majority, speaking through the General Assembly, finds one type of extramarital intercourse more offensive than another, does not provide a rational basis for criminalizing the sexual preference of homosexuals.

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

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 resolve the equal protection issue, one must first review the statute, KRS 510.100. This Act is not limited in its application to persons who consider themselves homosexual nor is it limited to the male or female gender. Any person who engages in deviate sexual intercourse with another person of the same sex is in violation. The statute prohibits conduct and says nothing of the sexual preference or gender of the violator. The United States Court of Appeals for the Fifth Circuit found this dispositive in upholding a Texas anti-sodomy statute. “The statute is directed at certain conduct, not at a class of people. Though the conduct be the desire of the bisexually and homosexually inclined, there is no necessity that they engage in it. The statute affects only those who choose to act in the manner proscribed.” Baker v. Wade (5th Cir. 1985).

There is nothing in the statute by which persons are classified and certainly nothing which accords unequal treatment to persons comprising a recognizable class on factors such as race, gender or ethnic origin. Burlington Northern Railroad Co. v. Ford (1992). . . .

As persons who engage in homosexual sodomy have never been held to constitute a suspect classification to be upheld, the statute at issue need only satisfy the lowest level of judicial scrutiny and demonstrate that it bears a rational relationship to a legitimate legislative objective. Protection of public “health, safety and morality” was held to be such an objective in Bosworth v. City of Lexington (Ky. 1930). This objective found new vitality with the emergence of the AIDS epidemic which indisputably originated in this country in the homosexual community. Moreover, Bowers v. Hardwick (1986), held forthrightly that the rational basis standard was satisfied by majority sentiments as to the immorality of homosexuality.

In final analysis, the question is whether a rational distinction may be drawn between acts of sodomy committed by heterosexuals and homosexuals. As cases such as Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), Loving v. Virginia (1967), and Roe v. Wade (1973) demonstrate, there is a heightened protection of the right of persons with respect to conduct in the context of marriage, procreation, contraception, family relationships, and child rearing and education. As such considerations are without any application as to acts of homosexual sodomy, the distinction is manifest.

“We do not condone the immorality of such activity,” says the majority. Despite this statement, it should not be doubted that this decision will be regarded as the imprimatur of Kentucky’s highest court upon homosexual conduct. The moral opprobrium of the majority will be lost and the popular perception will be that if the Constitution protects such conduct, it must be okay. While this is not an accurate line of thought, it is a natural one. Those who wish to urge that homosexual conduct is immoral and those who oppose the portrayal of homosexuality as an acceptable alternative lifestyle will encounter the majority opinion as a powerful argument to the contrary. Cf., Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) (Scalia, J. dissenting).

I conclude with the view that this Court has strayed from its role of interpreting the Constitution and undertaken to make social policy. This decision is a vast extension of judicial power by which four Justices of this Court have overridden the will of the Legislative and Executive branches of Kentucky State Government and denied the people any say in this important social issue. No decision cited by the majority has ever gone so far and certainly none comes to mind. Where this slippery slope may lead is anybody’s guess, but the ramifications of this decision will surely be profound.

For these reasons, I dissent.