51 N.Y.2d 476 | NY | 1980
Lead Opinion
OPINION OF THE COURT
These appeals, argued together, present a common question — viz., whether the provision of our State’s Penal Law that makes consensual sodomy a crime is violative of rights protected by the United States Constitution. We hold that it is.
Defendant Onofre was convicted in County Court of Onondaga County of violating section 130.38 of the Penal Law (consensual sodomy) after his admission to having committed acts of deviate sexual intercourse with a 17-year-old male at defendant’s home.
Defendants Peoples and Goss were convicted in Buffalo City Court of violating the consensual sodomy statute after a jury trial at which evidence was adduced that they had engaged in an act of oral sodomy in an automobile parked on a street in the City of Buffalo in the early morning hours. Defendant Sweat was convicted of the same crime after a jury trial in the same court on proof that she had committed a similar act with a male in a truck parked on a street in a residential area of the city about 1:30 a.m. In the cases in Buffalo City Court motions by defendants for dismissals of the informations on the ground that section 130.38 of the Penal Law is unconstitutional because it deprives them of equal protection of the law and denies their right of privacy had been denied.
On appeal by defendants from the judgments of conviction the Appellate Division, Fourth Department, reversed in the case of Onofre and dismissed the indictment, concluding that section 130.38 of the Penal Law was unconstitutional and the County Court of Erie County affirmed the convictions of Peoples, Goss and Sweat, rejecting the claims of unconstitutionality. The order of the Appellate Division should be affirmed; those of County Court should be reversed and the informations dismissed.
The statutes under which these defendants were charged and convicted provide as follows:
Ҥ 130.38 Consensual sodomy.
“A person is guilty of consensual sodomy when he engages in deviate sexual intercourse with another person.
Ҥ 130.00 Sex offenses; definitions of terms.
“The following definitions are applicable to this article:
* * * *
“2. Deviate sexual intercourse means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva.”
As to the right of privacy. At the outset it should be noted that the right addressed in the present context is not, as a literal reading of the phrase might suggest, the right to maintain secrecy with respect to one’s affairs or personal behavior; rather, it is a right of independence in making certain kinds of important decisions, with a concomitant right to conduct oneself in accordance with those decisions, undeterred by governmental restraint — what we referred to in People v Rice (41 NY2d 1018, 1019) as “freedom of conduct”. (See Whalen v Roe, 429 US 589, 598-600.) The right, which has been called “the most comprehensive of
As recently as 1976 the Supreme Court took pains in Carey v Population Servs. Int. (431 US 678, 684-685) to observe that “the outer limits” of the decision-making aspect of the right of privacy “have not been marked by the Court”, noting however that “among the decisions that an individual may make without unjustified government interference” are personal decisions relating to marriage (Loving v Virginia, 388 US 1, 12, supra), procreation (Skinner v Oklahoma, 316 US 535, 541-542), contraception (Eisenstadt v Baird, 405 US 438, 453-454), family relationships (Prince v Massachusetts, 321 US 158, 166), child rearing and education (Pierce v Society of Sisters, 268 US 510, 535; Meyer v Nebraska, 262 US 390, 399), and abortion (Roe v Wade, 410 US 113, 154, supra).
The People are in no disagreement that a fundamental right of personal decision exists; the divergence of the parties focuses on what subjects fall within its protection, the People contending that it extends to only two aspects of sexual behavior — marital intimacy (by virtue of the Supreme Court’s decision in Griswold v Connecticut [381 US 479, supra]) and procreative choice (by reason of Eisenstadt v Baird [405 US 438, supra] and Roe v Wade [410 US
“ ‘[A]Iso fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.
“ * “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in*488 material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man.” Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).'”
In light of these decisions, protecting under the cloak of the right of privacy individual decisions as to indulgence in acts of sexual intimacy by unmarried persons and as to satisfaction of sexual desires by resort to material condemned as obscene by community standards when done in a cloistered setting, no rational basis appears for excluding from the same protection decisions — such as those made by defendants before us — to seek sexual gratification from what at least once was commonly regarded as “deviant” conduct,
Any purported justification for the consensual sodomy statute in terms of upholding public morality is belied by the position reflected in the Eisenstadt decision in which the court carefully distinguished between public dissemination of what might have been considered inimical to public morality and individual recourse to the same material out of the public arena and in the sanctum of the private home. There is a distinction between public and private morality and the private morality of an individual is not synonymous with nor necessarily will have effect on what is known as public morality (see State v Saunders, 75 NJ 200, 218-
Finally, the records and the written and oral arguments of the District Attorneys as well are devoid of any support for the statement that a prohibition against consensual sodomy will promote or protect the institution of marriage, venerable and worthy as is that estate. Certainly there is no suggestion that the one is a substitute or alternative for the other nor is any empirical data submitted which demonstrates that marriage is nothing more than a refuge for persons deprived by legislative fiat of the option of consensual sodomy outside the marital bond.
In sum, there has been no showing of any threat, either to participants or the public in general, in consequence of the voluntary engagement by adults in private, discreet, sodomous conduct. Absent is the factor of commercialization with the attendant evils commonly attached to the retailing of sexual pleasures; absent the elements of force or of involvement of minors which might constitute compulsion of unwilling participants or of those too young to make an informed choice, and absent too intrusion on the sensibilities of members of the public, many of whom would be offended by being exposed to the intimacies of others. Personal feelings of distaste for the conduct sought to be proscribed by section 130.38 of the Penal Law and even disapproval by a majority of the populace, if that disapproval were to be assumed, may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision protected under the right of privacy drawn from the United States Constitution — areas, the number and definition of which have steadily grown but, as the Supreme Court has observed, the outer limits of which it has not yet marked.
The assertion in the dissent that validation of the consensual sodomy statute is mandated by our recent decision
As to the denial of defendants’ right to equal protection. Section 130.38 of the Penal Law on its face discriminates between married and unmarried persons, making criminal when done by the latter what is innocent when done by the former. With that distinction drawn, we look to see whether there is, as a minimum, “some ground of difference that rationally explains the different treatment accorded married and unmarried persons” under the statute (Eisen
Little more need be said to dispose of the contention made by the District Attorneys that the statute is a valid exercise of the police power vested in the State, which power, it is asserted, is authorized for the prevention of harm or for the preservation of public morality. No substantial prospect of harm from consensual sodomy nor any threat to public — as opposed to private — morality has been shown.
Finally, we do not plow new ground in the result we reach today. Most recently, the Supreme Court of Pennsylvania, for some of the same reasons that underlie our decision, has reached a similar conclusion even in a case in which the defendants were charged with commission of deviant acts of sexual conduct with members of the audience at performances in a public theatre for which an admission
That difficult question, to the extent that it is posed by these appeals, is before us now. For the reasons given above, we conclude that the imposition of criminal sanctions such as those contained in section 130.38 of the Penal Law is proscribed by the Constitution of the United States.
Accordingly, on the appeal by the District Attorney of Onondaga County the order of the Appellate Division should be affirmed. On the appeals by defendants Peoples, Goss and Sweat the orders of the Erie County Court should be reversed, the convictions vacated and the informations dismissed.
. Defendant’s conviction was not predicated on a guilty plea as inadvertently recited in the opinion at the Appellate Division.
. We are not unmindful that both District Attorneys seek to draw support from conduct by defendants which they claim either drew the admitted acts of sodomy into the classification of public, not private, conduct or which constituted a waiver of the right to assert a right of privacy. Because our disposition of these appeals rests also on a denial of equal protection rights we need not pass on the contention by the District Attorney of Erie County that the acts committed by defendants Peoples, Goss and Sweat, occurring in vehicles parked on a street or highway at times when traffic might be expected to be light but which could have been observed by a passerby should one have happened on the vehicles and looked inside, lost any claim to being private acts. (On oral argument counsel for the defendants expressly conceded that the acts took place “in public”.) The suggestion by the District Attorney of Onondaga County that because defendant Onofre presumably participated in the taking of photographs of himself while engaging in acts of sodomy and thereafter displayed such photographs to the District Attorney, he was foreclosed from asserting a right of privacy fails to distinguish between the two aspects of the right as subsequently discussed. Neither the photographing nor the display of the pictures (which was done only after charges of sodomy in the first degree and sexual abuse had been laid against him) affected the secluded nature of the conduct, which was done in defendant’s own home free from any observation by the public, although, conceivably, he may thereby have lost any claim to the secrecy aspect of the right to privacy — an aspect he is not now asserting. No distinction between these two aspects was observed in Lovisi v Slayton (363 F Supp 620, affd 539 F2d 349, cert den 429 US 977), the decision which appears to have turned on defendants’ failure to keep the photographs in such a way that their children would be denied access to them, which the court regarded as a breach of defendants’ responsibility to ensure that the seclusion surrounding their acts was preserved (363 F Supp, p 627).
. We express no view as to any theological, moral or psychological evaluation of consensual sodomy. These are aspects of the issue on which informed, competent authorities and individuals may and do differ. Contrary to the view expressed by the dissent, although on occasion it does serve such ends, it is not the function of the Penal Law in our governmental policy to provide either a medium for the articulation or the apparatus for the intended enforcement of moral or theological values. Thus, it has been deemed irrelevant by the United States Supreme Court that the purchase and use of contraceptives by unmarried persons would arouse moral indignation among broad segments of our community or that the viewing of pornographic materials even within the privacy of one’s home would not evoke general approbation (Eisenstadt v Baird, 405 US 438, supra; Stanley v Georgia, 394 US 557, supra). We are not unmindful of the sensibilities of many persons who are deeply persuaded that consensual sodomy is evil and should be prohibited. That is not the issue before us. The issue before us is whether, assuming that at least at present it is the will of the community (as expressed in legislative enactment) to prohibit consensual sodomy, the Federal Constitution permits recourse to the sanctions of the criminal law for the achievement of that objective. The community and its members are entirely free to employ theological teaching, moral suasion, parental advise, psychological and psychiatric counseling and other noncoercive means to condemn the practice of consenual sodomy. The narrow question before us is whether the Federal Constitution permits the use of the criminal law for that purpose.
. Notable also is the fact that when the Model Penal Code was adopted by the American Law Institute a subsection which would have made consensual sodomy a misdemeanor (§ 207.5, subd [4]) was consciously omitted (ABA-ALI Model Penal Code, Proposed Official Draft, § 213.2, Status of Section, pp 145-146; Tent Draft No. 4, pp 93, 276).
. Twenty-two States have now decriminalized consensual sodomy between adults in private (Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings LJ 799, 950-951; NJ Stats Ann, § 2C:98-2).
. If we are correct in the view earlier expressed in this opinion that section 130.38 of the Penal Law infringes on defendants’ right of privacy which is a fundamental right, then, as observed, in Eisenstadt, the statutory classification “would have to be not merely rationally related to a valid public purpose but necessary to the achievement of a compelling state interest” (405 US, p 447, n 7). As was so in Eisenstadt, however, we do not need to measure the statute by that test inasmuch as it fails to satisfy even the more lenient rational basis standard.
Dissenting Opinion
(dissenting). Without making any effort to define its boundaries or limitations, a majority of my colleagues has recognized for the first time a constitutional right of personal autonomy broad enough to encompass at least the freedom to indulge in those sexual practices which have long been proscribed by our criminal law. Although the majority has attempted to associate this “fundamental right” with the recent Supreme Court decisions creating a “zone of privacy” to protect certain familial decisions, it is apparent that the connection between this case and those decisions exists only on the most superficial level and that the right of sexual choice established today is really a wholly
I begin with the premise that none of the cases relied upon by the majority stand for the proposition that there is a generalized right of privacy or personal autonomy implicit in the Federal Bill of Rights. Nor do the cases cited in the majority opinion provide support for the idea that the courts may invoke the due process clause of the Fourteenth Amendment as a predicate for striking down penal provisions which some members of the judiciary may find distasteful or inconsistent with their own notions of fundamental fairness. Indeed, were that not the case, we could not have held as we recently did in People v Shepard (50 NY2d 640) that the statutory ban on the private possession of marihuana (see Penal Law, § 220.03) is not an unconstitutional infringement of the right of an individual to do as he pleases in his own home. To the contrary, had we concluded in Shepard as the majority seems to have concluded in this case that the freedom to choose one’s own form of sensory gratification within the confines of one’s own home is a constitutionally protected “fundamental” right, we could not have sustained the statute at issue in that case on the basis of mere “rationality”, but would instead have been duty bound to conduct a more searching inquiry to determine whether the State’s interest in the legislative ban was truly “compelling” (see, e.g., Roe v Wade, 410 US 113; Shapiro v Thompson, 394 US 618; Griswold v Connecticut, 381 US 479, supra).
Arguing that the People have failed to demonstrate that individuals who engage in consensual acts of sodomy are likely to suffer any serious physical side effects, the majority has attempted to distinguish the statutory prohibition at issue in Shepard from that at issue in this case by stressing that the ban which we upheld in Shepard was justified by a
In order to determine whether the freedom to engage in a particular activity is a constitutionally protected “fundamental right”, we must look directly to the specific guarantees outlined in the body of the Constitution and the Bill of Rights and to the “penumbras, formed by emanations from those guarantees]” (Griswold v Connecticut, 381 US 479, 484, supra). The nature and extent of the State’s interest in regulating or proscribing the activity in question are simply not relevant considerations at this stage of the inquiry. Indeed, it is only after the court makes a threshold determination as to whether a particular State regulation impinges upon a “fundamental right” that such considerations are brought into play. If it is determined, for example, that a “fundamental right” is being impaired, the regulation at issue cannot be sustained unless it is narrowly tailored to effectuate some “compelling” governmental interest, such as the State’s interest in protecting the health of its citizens (see Roe v Wade, 410 US 113, supra; Shapiro v Thompson, 394 US 618, supra). On the other hand, once it is established that no “fundamental rights” are at issue, the court may uphold the State enactment if it is merely rationally related to some legitimate governmental purpose which falls within the State’s broad police powers (e.g., People v Shepard, 50 NY2d 640, supra). By suggesting that the activity proscribed in this case involves a “fundamental right” simply because it entails no significant danger to health, the majority has created a truly circular constitutional theory and has, in effect, injected an additional level of confusion into this already rather murky area of the law.
Under the analysis utilized by the majority, all private, consensual conduct would necessarily involve the exercise of a constitutionally protected “fundamental right” unless the conduct in question jeopardizes the physical health of the participant. In effect, the majority has held that a State statute regulating private conduct will not pass constitutional muster if it is not designed to prevent physical harm
We may avoid the circularity in the majority’s reasoning in cases such as this only if we utilize a two-tiered approach, taking care to ascertain at the outset whether a “fundamental right” is actually implicated without regard to the nature of the governmental interest involved in the challenged statute. If no such right is found to exist, we must refrain from interfering with the choice made by the Legislature and rest content upon the assurance that when the challenged statute is no longer palatable to the moral sensibilities of a majority of our State’s citizens, it will simply be repealed.
Although our decision to sustain the statute challenged in Shepard under settled principles of judicial restraint would seem dispositive of the issue in this case, the majority has nonetheless adopted a contrary view and has placed the claim of personal autonomy asserted by defendants in the category of those ill-defined fundamental rights which are protected by the “penumbras” emanating from the Bill of Rights (Griswold v Connecticut, supra, at pp 484-485) and by the concept of ordered liberty implicit in the due process clause of the Fourteenth Amendment (Roe v Wade, supra, at pp 152-153). I cannot agree, however, that the right of an individual to select his own form of sexual gratification should
The “fundamental” rights recognized in Griswold, Roe and their progeny are clearly not a product of a belief on the part of the Supreme Court that modern values and changing standards of morality should be incorporated wholesale into the due process clause of the Fourteenth Amendment. To the contrary, the language of the Supreme Court decisions makes clear that the rights which have so far been recognized as part of our due process guarantee are those rights to make certain familial decisions which have been considered sacrosanct and immune from governmental intrusion throughout the history of western civilization. The point has been aptly made by Justice Harlan in his oft-quoted dissent in Poe v Ullman (367 US 497, 553, quoted in Griswold v Connecticut, 381 US 479, supra, at p 499 [Goldberg, J., concurring]): “Adultery, homosexuality and the like are sexual intimacies which this State forbids * * * but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and
This is not to suggest that the Federal Constitution protects only those sexually related decisions that are made within the context of the marital relationship. As the majority notes, such a conclusion was effectively foreclosed when the Supreme Court stated in Eisenstadt v Baird (405 US 438, 453, supra): “It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” (emphasis in original).
Nevertheless, contrary to the position taken by the majority, I cannot agree that this language foreshadows a recognition by the Supreme Court of a generalized right to complete sexual freedom for all adults, whether married or single. Instead, as is suggested by the careful wording of the quoted paragraph, I would conclude that Eisenstadt stands only for the narrower proposition that the ancient and “fundamental” right of an individual to decide “whether to bear or beget a child” cannot be limited to married adults (accord Hindes, Morality Enforcement Through the Criminal Law and the Modern Doctrine of Substantive Due Process, 126 U of Pa L Rev 344, 361-362).
The majority impliedly recognizes that the Supreme Court has to date limited the protection of the Constitution
The assertion that the theories espoused in Griswold, Roe and their progeny may be likened to the discredited doctrine of “substantive due process” (see, e.g., Coppage v Kansas, 236 US 1; Lochner v New York, 198 US 45; Allgeyer v Louisiana, 165 US 578; see, generally, Tribe, American Constitutional Law, §§ 8-1 through 8-7) would not come as a surprise to any serious constitutional scholar. Many have made the observation that the modern notion of “fundamental rights” bears a striking resemblance to the Lochner doctrine under which State economic and social
In the wake of Griswold and Roe, it is no longer an intellectually defensible position to suggest that the once discredited doctrine of “substantive due process” is entirely dead and buried. On the other hand, it is far from clear that those two cases heralded an unqualified return to the days when a Judge acted as “a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness” (Cardozo, Selected Writings, Nature of the Judicial Process, at p 164, quqted in People v Shepard, 50 NY2d 640, 646, supra). As the language of those decisions and their forerunners indicates, the “fundamental” rights so far recog
To suggest, as the majority does, that the concept of “fundamental rights” should be expanded to include a generalized right to sexual gratification in whatever form would be, in effect, to bring the law of “substantive due process” full circle by eliminating all of its present salutary limitations and restoring it to its former status as a vehicle for lawmaking by judicial fiat. The majority acknowledges in passing that the sexual,choice the defendants now assert as a matter of constitutional right was once regarded as “ ‘deviant’ conduct” (p 488), but it erroneously ascribes no legal significance to that fact, relegating it instead to an irrelevant phenomenon of theology and privately held moral beliefs. This rather glib refusal to take account of the historical treatment of consensual sodomy as criminally punishable conduct has left a gaping hole in the majority’s analysis.
In contrast to decisions relating to family life, matrimony and procreation, decisions involving pure sexual gratification have been subject to State intervention throughout the history of western civilization (see Griswold v Connecticut, 381 US 479, 505, supra [White, J., concurring]; Poe v Ullman, 367 US 497, 553, supra [Harlan, J., dissenting] ; Doe v Commonwealth’s Attorney for City of Richmond, 403 F Supp 1199, affd 425 US 901; Dawson v Vance, 329 F Supp 1320, 1322; State v Bateman, 25 Ariz App 1, 4, revd in part 113 Ariz 107 [en banc]). Scholars from Aquinas to Blackstone considered even consensual sodomy to be as heinous as the crime of rape (43 Aquinas, Summa Theologiae, pp 246-249 [Gilby ed] ; 4 Blackstone’s commentaries *215; see, generally, Richards, Unnatural Acts and the Constitutional Right to. Privacy: A Moral Theory, 45 Fordham L Rev 1281, 1292-1298). Indeed, as early as 1553
In view of the continuous and unbroken history of anti-sodomy laws in the United States, the majority’s decision to strike down New York’s statute prohibiting consensual sodomy can only be regarded as an act of judicial legislation creating a “fundamental right” where none has heretofore existed. As such, today’s decision represents a radical departure from cases such as Griswold and Roe, in which the Supreme Court merely swept aside State laws which impaired or prohibited entirely the free exercise of rights that traditionally had been recognized in western thought as being beyond the reach of government. I cannot concur in the majority’s conclusion.
Accordingly, I cast my vote to reverse the order of the Appellate Division in People v Onofre and to affirm the respective orders of the County Court in People v Peoples, People v Goss and People v Sweat.
In People v Onofre: Order affirmed.
In People v Peoples and Goss and People v Sweat: Orders reversed, convictions vacated and informations dismissed.
. I find additional support for my interpretation of the Eisenstadt opinion
Similarly, in Roe v Wade (410 US 113,154), the Supreme Court refused to accept the contention that “the claim * * * that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions”. The Roe court flatly stated that “[t]he Court has refused to recognize an unlimited right of this kind in the past”.
. While the majority has placed great reliance upon the decision of the Supreme Court in Stanley v Georgia (394 US 557) as support for the proposition that the Bill of Rights encompasses a general right of privacy and personal autonomy, that decision, in my view, is not susceptible of such an expansive reading (compare Paris Adult Theatre I v Slaton, 413 US 49). In Stanley, the court struck down a State statute that penalized the private possession of printed pornographic material in the home. Although the Stanley court acknowledged that the obscene materials themselves would not ordinarily be covered by the protection of the First Amendment (see Roth v United States, 354 US 476), it made clear that its decision to invalidate the challenged legislation was based in large measure upon the individual’s First Amendment “right to receive information and ideas, regardless of their social worth” "(394 US, at p 564). Indeed, in a significant passage of its opinion, the Stanley court stated: “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch” (id., at p 565). The so-called “privacy right” recognized in Stanley may thus be regarded as a simple extension of the First Amendment guarantee against governmental interference with the transmission of ideas. That the “privacy right” articulated in Stanley does not extend beyond the “right to receive information” and into the claimed right to receive “sensations”, whether sexually or chemically induced, was reaffirmed in our recent decision in People v Shepard (50 NY2d 640, supra).
. Without intending to sound a general alarm, I cannot help but wonder what the limits of the majority’s new doctrine of “personal autonomy” might be. If, for example, the freedom of an individual to engage in acts of consensual sodomy is truly a “fundamental right”, it would seem fairly clear that, absent a “compelling state interest”, the State cannot impose a burden upon the free exercise of that right by limiting the individual’s access to government jobs (cf. Shapiro v Thompson, 394 US 618). Moreover, if the only criterion for determing when particular conduct should be deemed to be constitutionally protected is whether the conduct affects society in a direct and tangible way, then it is difficult to perceive how a State may lawfully interfere with such consensual practices as euthanasia, marihuana smoking, prostitution and homosexual marriage. I very much regret that the majority has failed in its discussion of the “fundamental right” to personal autonomy to set forth some analytical framework for resolving difficult questions such as these.
. Inasmuch as I conclude that there is no “fundamental right” to sexual gratification, I must also consider whether section 130.38 of the Penal Law represents an irrational classification on the basis of marital status in violation of the equal protection clause of the Fourteenth Amendment. Since marital status has never been recognized as a “suspect classification” (compare Execu^ tive Law, § 296), the legislative distinction between marrieds and unmarrieds may stand if it bears some rational relation to a legitimate governmental interest.
Unlike my colleagues in the majority, I have no trouble concluding that the legislative decision to permit married individuals to engage in conduct that is forbidden to the unmarried is rationally based. While the State may prefer that none of its citizens engage in the proscribed forms of sexual gratification, it may properly limit its statutory prohibition to those that are unmarried oh the theory that the institution of marriage is so important to our society that even offensive intimacies between married individuals should be tolerated. The statute at issue in this case is thus distinguishable from the statute at issue in Eisenstadt v Baird (405 US 438), where the Supreme Court concluded that a ban on the sale of contraceptives to unmarrieds only had no relation to any legitimate government interest.
Concurrence Opinion
(concurring in result). While I cannot accept the majority’s premise that the so-called “penumbral” right to privacy which first appeared in Griswold v Connecticut (381 US 479) should be extended to encompass and protect any and all types of consensual sexual behavior in private, I nonetheless concur in result herein for I can discern no rational basis upon which the Legislature could have decided to freely allow the conduct in issue among married people and to make identical conduct criminal among those for whom that estate is undesirable or unattainable.
I hasten to add that, in my opinion, the Legislature does have the power to make moral judgments. However, that legislative power is, as all others are, limited by the supervening requirement that it be exercised with the requisite evenhandedness. Here, it was not.