State v. ThompsonState v. Thompson
- Reporters:
- ,
- Before:
- Cook, F.E. Sweeney, Moyer, Resnick, Lundberg Stratton, Douglas, Pfeifer
SYLLABUS OF THE COURT
COOK, J.
{¶1} This cause presents the issue of whether Ohio‘s importuning statute,
I
{¶2} In July 1999, Thompson was charged with violating
{¶3} The trial court found Thompson guilty. Thompson appealed to the Eleventh District Court of Appeals. That court found Thompson‘s argument that the importuning statute violated equal protection compelling, but “[w]ith considerable reluctance” followed a prior decision from this court that held that
{¶4} The cause is now before this court pursuant to our allowance of a discretionary appeal.
II
{¶5}
{¶6} “The solicitation of homosexual or lesbian activity is also prohibited, when the solicitor knows or has reasonable cause to believe the solicitation is offensive to the person solicited.
{¶7} “The section represents an exception to the general rule that ‘just asking’ is not a criminal offense. * * * The rationale for prohibiting indiscreet solicitation of deviate conduct is that the solicitation in itself can be highly repugnant to the person solicited, and there is a risk that it may provoke a violent response.”
{¶8} In State v. Phipps (1979), 58 Ohio St.2d 271, 12 O.O.3d 273, 389 N.E.2d 1128, the court relied on this stated purpose in construing
{¶10} Thompson asks this court to hold that
{¶11} The
{¶12} Without revisiting the Phipps issue of whether homosexual solicitations targeted by
{¶13} “In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment * * * [courts] apply different levels of scrutiny to different types of classifications.” Clark v. Jeter (1988), 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465. We use the same analytic approach in determining whether a statutory classification violates
{¶14} Although the parties contend that
{¶15} The rationale behind this decision is instructive. The court explained that the general proposition that fighting words “are ‘not within the area of constitutionally protected speech,’ or that the ‘protection of the First Amendment does not extend’ to them” is misleading if not taken in the proper context.
{¶16} We find this reasoning directly applicable to the case at bar. Here,
{¶17} The stated legislative purpose of the statutory classification at issue is the desire to prevent a violent response to same-sex sexual solicitation. But the means employed here to accomplish this end, in the words of the R.A.V. court, present a “realistic possibility that official suppression of ideas is afoot.” R.A.V., 505 U.S. at 390, 112 S.Ct. 2538, 120 L.Ed.2d 305. We are convinced that
{¶18} Here,
{¶19} The state has not narrowly tailored
{¶20}
III
{¶21} In his separate concurrence, Justice Pfeifer also argues that rational-basis review applies and that the statute would fail under such scrutiny. He errs in several ways.
{¶22} The concurrence accuses us of “not address[ing] the central issue of the case, the only issue that was argued by the parties: whether
{¶23} Nonetheless, the concurrence concludes that this court should employ a rational-basis review, because the “obvious intent of
{¶24} Finally, even if
{¶25} This court has previously explained:
{¶26} “Under federal [and state] rational-basis analysis, a classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ Fed. Communications Comm. v. Beach Communications, Inc. (1993), 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211, 221. A rational relationship will exist under rational-basis review if ‘the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational, see Cleburne v. Cleburne Living Ctr., Inc. [1985], 473 U.S. [432], 446 [105 S.Ct. 3249, 3257, 87 L.Ed.2d 313, 324].’ Nordlinger v. Hahn (1992), 505 U.S. 1, 11, 112 S.Ct. 2326, 2332, 120 L.Ed.2d 1, 13.
{¶27} “Importantly, a state has no obligation whatsoever ‘to produce evidence to sustain the rationality of a statutory classification.’ Heller v. Doe (1993), 509 U.S. 312, 320, 113 S.Ct. 2637, 2643, 125 L.Ed.2d 257, 271. ‘[A] legislative choice * * * may be based on rational speculation unsupported by evidence or empirical data.’ Beach Communications, supra, 508 U.S. at 315, 113 S.Ct. at 2102, 124 L.Ed.2d at 222. ’ “[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” ’ Heller, supra, quoting Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351, 358. Furthermore, ‘courts are compelled under rational-basis review to accept a legislature‘s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because “* * * in practice it results in some inequality.” ’ Dandridge v. Williams [1970], 397 U.S. [471] 485 [90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501-502], quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S.Ct. 337, 340, 55 L.Ed. 369, 377] (1911). * * *’ Heller, 509 U.S. at 321, 113 S.Ct. at 2643, 125 L.Ed.2d at 271.” Am. Assn. of Univ. Professors, Cent. State Univ. Chapter, 87 Ohio St.3d at 58, 717 N.E.2d 286.
{¶29} Therefore, in the words of Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. at 313, 113 S.Ct. 2096, 124 L.Ed.2d 211, there is a “reasonably conceivable state of facts that could provide a rational basis for th[is] classification“: preventing violence by prohibiting that which is likely to induce it. While the generalization underlying the classification may not be one that any member of this court would endorse, our role is to accept the legislature‘s proposition unless Thompson negates “every conceivable basis which might support it.” Id. at 315, 113 S.Ct. 2096, 124 L.Ed.2d 211. Thompson has failed to do this. Thus, we could not say that the relationship of the classification to its goal is “so attenuated as to render the distinction arbitrary or irrational.” Cleburne, 473 U.S. at 446, 105 S.Ct. 3249, 87 L.Ed.2d 313. Only by ignoring the stated rationale behind
{¶30} Nevertheless,
IV
{¶31} It is well settled that “[t]he First and Fourteenth Amendments forbid discrimination in the regulation of expression on the basis of the content of that expression.” Carey v. Brown (1980), 447 U.S. 455, 463, 100 S.Ct. 2286, 65 L.Ed.2d 263, fn. 7. See, also, Burson, 504 U.S. at 197, 112 S.Ct. 1846, 119 L.Ed.2d 5, fn. 3 (plurality opinion). Accordingly, we find that
Judgment reversed.
F.E. SWEENEY, J., concurs.
MOYER, C.J., RESNICK and LUNDBERG STRATTON, JJ., concur in syllabus and judgment.
DOUGLAS, J., concurs in judgment and in the concurrence of Justice Pfeifer.
PFEIFER, J., concurs separately.
PFEIFER, J., concurring.
{¶32} The lead opinion rightly determines that
{¶33} Instead, the lead opinion finds
{¶34} I would directly address the issue that the parties raised. I would find that the classification drawn in
DOUGLAS, J., concurs in judgment and in the foregoing opinion.
Thomas L. Sartini, Ashtabula County Prosecuting Attorney, Ariana E. Tarighati, Chief Assistant Prosecutor, and Angela M. Scott, Assistant Prosecuting Attorney, for appellee.
Ashtabula County Public Defender, Inc., and Marie Lane, for appellant.
Heather C. Sawyer, urging reversal for amici curiae Lambda Legal Defense and Education, Inc., the Ohio Association of Criminal Defense Lawyers, and the Ohio Human Rights Bar Association.