*1 Gary Lumpkin L. /s/

GARY L. LUMPKIN

Judge F. James Lane /s/ LANE JAMES F. Judge Reta M. Strubhar /s/

RETA M. STRUBHAR Judge SAWATZKY, Appellant, Kenneth B. OKLAHOMA The CITY OF CITY, Appellee.

No. M-94-1309. Appeals Court of Criminal of Oklahoma. Nov. Henricksen, City,

Mark for De- fendant trial. Porter, Fouts,

Michael Mike Assistant Mu- Counselors, nicipal City, at trial. Henricksen,

Mark Henrick- Henricksen & Inc., Reno, Lawyers, Appellant sen El on appeal. West, Counselor,

William O. Mi- Porter, Counselor, chael Assistant City, Appellee appeal. OPINION CHAPEL, Presiding Judge. Vice guilty by

Kenneth B. was found jury Offering on November Engage in Act an of Lewdness violation of *2 786 question of whether the 1993, yet to reach the Chap- Municipal Code City

Oklahoma 30-152, City 30, in Oklahoma non-com- right privacy extends to ter Section Court, No. 94-4237631. Sa- Case sodomy consenting adults of between mercial formally on December watzky sentenced gender,2 the United States the same and and ordered 1, fined 1994. He was $250.00 expressly refused to ex- Supreme has Court Sawatzky ap- costs. pay court $105.00 right the federal equivalent under tend the Accelerated appeal on the plied place his who to individuals constitution Rule 11.3 of pursuant to Docket of this Court issue decline to reach the such conduct.3 We Court Crimi- the Oklahoma the Rules of a solic- this case involves here because 18, App. O.S.Supp.1995, Ch. 22 Appeals, nal nothing more. itation and assigned to the appeal was thereafter February On Accelerated Docket. propositions and third Sa- In his second from Sawatzky for Removal filed Motion 30-151 and 30- watzky claims that Sections subsequent- that was Docket the Accelerated protection. The right equal 152 violate his ly denied. on the state con- proposition is based second proposition is based and the third stitution regula about the case is neither This right constitution. The on the federal consenting adults in tion of conduct between bedrooms, protection guaranteed nor the under Okla- equal privacy of their consistently to homosexual in- status to be has homa’s Constitution whether Fundamentally, terpreted coextensive with the as City may legally prohibit public the feder- equal protection guaranteed under private non-commercial solicitations Consequently, we address al constitution.4 Sawatzky an act of sodomy. solicited propositions together. these police public place from a lewdness1 Sawatzky in his second invites this Court intended to The act solicited was officer. propositions third to determine and Sawatzky and the place and take lawfully engage pri- may gender. In same sex adults of the same officer are members Sawatzky clear that consensual this context it is vate non-commercial entitled to relief. this issue in Post be- declined to reach We not warrant facts of that case did cause the Sawatzky proposition of error In his first Likewise, the facts of a determination.5 such vio- 30-151 and 30-152 claims not warrant a determina- case do guaranteed privacy as late his it. do not address tion of this issue This Court the Oklahoma Constitution. application homosexuality since the City tion of defines lewdness as: 1. Oklahoma lascivious, conduct is not an issue statute to such any lustful or licentious a. duct, holding today to declare Our case. 886 to or of section b. unconstitutional fellatio, intercourse, case.”). thorough indiscriminate sexual cunnilingus, For a discus the facts of this jurisprudence, see sion of Oklahoma's lascivious, conduct or lustful or licentious Backer, Sodomy Larry Raping Catá Sodomiz spouse, her not his or Morality ing Rape: Tale About the A Transforma act in furtherance of such conduct c. Sodomy Jurisprudence, 21 Am. tion Modem engagement prostitu- any appointment or (1993). 37 J.Crim.L. tion. 1993, Chapter City Code Hardwick, 186, 106 S.Ct. 478 U.S. 3. Bowers v. 30, § This definition be overbroad 30-151. 2841, 92 L.Ed.2d 140 standpoint. addition to a constitutional In proscribes proscribing it also However, Edmond, 104, City vaginal Callaway and masturbation. 791 P.2d 106 intercourse 4. portion (“Our (Okl.Cr.1990) process Court addresses the fellatio this due clause in n. 1 definition, clearly Const., an act of 7, range 2 Okl. has a definitional Art. Sec. only portion implicated the facts of it is the its federal counter is coextensive with to attack case and because failed ...”). part. overbroad. the ordinance as Post, 1105, State, (Okl.Cr.), 715 P.2d 1110. 1110 2. Post v. 715 P.2d 290, 890, denied, 93 U.S. 107 S.Ct. cert. 479 (1986) ("We ques do not reach L.Ed.2d In proposition This case involves a his final of error Sa- watzky contends that acts defined as lewd under Sections 30-151 and 30-151(l)(b),6 30-152 violate his under Article 30-151. Section cre- Section Section of the Oklahoma Constitution. Es ates an in the sentially Sawatzky’s claim is that Sections *3 person definition of lewdness. The married impermissibly 30-151 and 30-152 are found is the distinction between religious ed on beliefs in violation of the groups contained in the text Sections 30- establishment unsup clause. This claim is 151 and 30-152. not a Because is ported by the record and is denied. class, suspect quasi-suspect member of a Sawatzky’s equal protection we will examine LANE, JJ„ LUMPKIN and concur. Among claim under the rational basis test. things other and 30-152 are STRUBHAR, J., dissents. designed protect persons being to STRUBHAR, Judge, dissenting. engage activity. asked others to in sexual Protecting citizens from solicitations for sex- majority in opinion The has stated that legitimate governmental ual is a inter- regulation this case is not about the of con- est.7 The distinction found in Section 30- consenting duct between priva- adults in the 151, exempting persons married from the cy of their legal bedrooms or about the status lewdness, logically recognizes definition of to be to homosexual consequence that such solicitations be a Rather, it held that Therefore, relationship.8 of the marital City may legally prohibit person exception hold that the married is private solicitations for non-commer- rationally legitimate governmen- related to a cial specific Under the facts tal interest and does not case, to agree I ap- that this limited equal protection guaranteed by the proach appropriate. Okla- majori- is It is with the ty’s homa and ensuing analysis disagree. federal constitutions.9 that community, "[T]he of the for indis- culture. In our some forms of overt intercourse, fellatio, conduct, including criminate sexual cunnilin- sexual the solicitation of some acts, gus, appropriate or lascivi- sexual not ous, places. suggest any person government pro- lustful or licentious conduct with To that cannot added). spouse (emphasis hibit [.] not his or her Al- such solicitation is unfathomable. Of course, though equally pernicious the dissent seems to indicate that a mar- are those laws which go trying person regulate too permitted far in our activi- would be under the statute above, question, publicly ties. As noted the purpose ordinances in solicit for the 30-152, may §§ very go engaging 30-151 and well too far non-commercial consensual attempting regulate private activities. Su- clearly this is not the case. The married case, however, pra applied note 1. As in this person exception applies only to solicitations First Amendment were not vio- by persons made who are married to each other. lated. holding implicates 7. We are aware that our other opinion 8. We are of the that within the marital provisions including constitutional the First relationship impli- the to the speech. to free The free (not edly consent to sexual solicitations sexual speech significant ignored issue is and cannot be acts) and, thus, City's exception the case, though declining, even we are persons entirely rationally reasonable and re- decide whether or not sex is law- same purposes lated to the of the ordinances. generally ful. The issue arises because it is rec- ognized government prohibit should not the solicitation of conduct that is not unlawful. Oth- Kentucky 9. On facts similar to this case the Su- struggled problem preme prohibiting er courts have Court found that a statute questiona- have reached to resolve the issue with homosexual was unconstitutional under existing Kentucky ble rationales such as the the Wasson; Constitution. Commonwealth v. "fighting Phipps, (Ky.1992). words” doctrine. State v. 842 S.W.2d 487 Wasson 271, 277-79, actually charged Ohio St.2d 389 N.E.2d 1133- statute that made view, prohibitions In our reasonable criminal offense unlawful. similar, Although factually sexual acts do not violate the Id. at 488. Wasson is underlying helpful solely First Amendment whether the in this case because it is based Kentucky’s duct substantially is lawful or unlawful. Our view is based Constitution which is upon unique status of sexual conduct in our different from Oklahoma's Constitution. clearly The in this case notes that the sections of of this case. record opinion Appel- finding spoken supports under which that the exempt persons by Appellant convicted which was construed be an lant was According- engage from the definition lewdness.1 acts was not made offer persons convicted ly, can be reasonably non-married could under circumstances which are offering acts which certain perceived to have been It is the Rather, to solicit. testimony of as is evinced lawful to reasoning officer, arresting purposefully Appellant was distinguish between married that a led to believe sexual solicitation would of solicita- purposes non-married Nothing in this situation indi- be welcome. such solicitations tion of lewd cated that solicitation was unwelcome or *4 consequence of marital are a Although majority opinion impliedly consented. which prohibi- in footnote 7 states that “reasonable ambiguous, Although seems tions sexual acts do not imply that dissimilar treatment First justified and non-married underlying conduct is lawful or unlawful” the by non-mar- public solicitation lewd municipal prohibits both invited likely solici- to offend whereas extent, and to this and offensive solicitations participate in tation to imposes restrictions. unreasonable Ac- Accordingly, one not. persons to another is cordingly, I dissent. seems indicate that there governmental protect- legitimate interest

ing unmarried from offensive solici- tations to lewd acts. arguendo, Assuming, this is a valid interest, governmental note would implicated such situation was not the facts City Municipal Code Sections and 30-152. 1. See