Commonwealth v. Wasson

842 S.W.2d 487, 1992 Ky. LEXIS 140, 1992 WL 235412

• Court: Kentucky Supreme Court
• Decided: September 24, 1992
• Docket: 90-SC-558-TG
• Status: Published

Opinions

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.

The appellee is actually charged under KRS 506.030, which covers “solicitation” to commit any criminal offense. If the offense solicited is a Class A misdemeanor, solicitation of the offense is punished as a Class B misdemeanor. KRS 506.030(2)(d). The issue here is whether KRS 510.100, which defines the underlying criminal offense, is constitutional.

The charges were brought in the Fayette District Court where appellee moved to dismiss the charge on grounds that a statute criminalizing deviate sexual intercourse between consenting adults of the same sex, even if the act is committed in the privacy of a home, violates the Kentucky Constitution as: (1) an invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment.

The Fayette District Judge held the statute violated appellee’s right of privacy, and dismissed the charge. The Commonwealth appealed to Fayette Circuit Court which affirmed, and further held this statute infringed upon equal protection guarantees found in the Kentucky Constitution. Once more the Commonwealth appealed, and, because of the constitutional issues involved, this Court granted transfer.

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, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (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.

A third issue presented at the trial level was whether KRS 510.100 violated state and federal constitutional protections against cruel punishment. This issue was decided against Wasson in District Court, but not addressed in the Circuit Court judgment. The issue is not preserved, and we decline to discuss it.

The brief statement of facts upon which the District Court rendered judgment is as follows:

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.¹

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, supra, 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 majori-tarian 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, supra, 478 U.S. at 193, n. 6, 106 S.Ct. at 2846, n. 6, 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, 133 Ky. 720, 118 S.W. 943 (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. In United States v. Milby, 400 F.2d 702, 704 (6th Cir.1968), applying the Poindexter holding, the Court states:

“Concededly, by virtue of Commonwealth v. Poindexter, 133 Ky. 720, 118 S.W. 943 (1909), in order for the act of sodomy to be committed by one person on another, under Kentucky law, it is necessary that there be anal penetration.”

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:

Ҥ 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....”

These Sections, together with Sections 59 and 60 of our Kentucky Constitution which prohibit “local or special” legislation, express the guarantee of equal treatment provided by the law in our Kentucky Constitution. The lower courts’ judgments limit their finding of unconstitutionality to state constitutional grounds. Bowers v. Hardwick, supra, speaks neither to rights of privacy under the state constitution nor to equal protection rights under either federal or state constitutions. Bowers addressed the constitutionality of a Georgia statute prohibiting acts of consensual sodomy between persons of the same sex or the opposite sex. Because the Georgia statute embraced both heterosexual and homosexual conduct, the Bowers opinion did not involve the Equal Protection Clause of the Fourteenth Amendment.

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.

I. RIGHTS OF PRIVACY

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, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570, 575 (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.” [Emphasis original.]

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. See Vol. 1:1988, “Emerging Issues in State Constitutional Law,” A.E. Dick Howard, The Renaissance of State Constitutional Law. The Virginia Bill of Rights, which had great impact, preceded not only the Bill of Rights in the United States Constitution, but by one month the Declaration of Independence. In an article in the Kentucky Law Journal, Vol. 80: 1991-92, No. 1, The Kentucky Bill of Rights: A Bicentennial Celebration, by Gormley and Hartman, the authors attribute the source of much of our original Kentucky Bill of Rights to the then recently enacted Pennsylvania counterpart:

“A comparison of the Kentucky Bill of Rights of 1792 and a number of earlier, now defunct constitutions of the leading colonies, demonstrates unequivocally that the original Kentucky Bill of Rights was borrowed almost verbatim from the Pennsylvania Constitution of 1790.”

The evidence supporting this proposition is carefully documented in the article. 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, 133 Ky. 50, 117 S.W. 383 (1909), but it is also the common thread found in Commonwealth v. Smith, 163 Ky. 227, 173 S.W. 340 (1915), Hershberg v. City of Barbourville, 142 Ky. 60, 133 S.W. 985 (1911), Adams Express Co. v. Commonwealth, 154 Ky. 462, 157 S.W. 908 (1913), and Lewis v. Commonwealth, 197 Ky. 449, 247 S.W. 749 (1923). Leading tort cases grounded on that same right of privacy include Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364 (1909), Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849 (1912), and Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927).

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. The first mention of a federal guarantee of the right of privacy is in the Dissenting Opinion of Justice Louis Brandeis in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928), in which he defined it as “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” Actual recognition by the majority as a working premise came much later in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

The list of individual rights guaranteed by the Federal Bill of Rights is patently incomplete; ergo the Ninth Amendment stating:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Federal constitutional analysis has proceeded from so-called “emanations” and “penumbras” of the First, Third, Fourth and Fifth Amendments in the Bill of Rights. These amendments elaborate some of the “blessings of liberty” referred to in the Preamble to the United States Constitution, but by no means all of them. It is because the United States Supreme Court has recognized that the list is not exclusive, not even for purposes of federal constitutional protection, that it has undertaken, using the Due Process Clauses in the Fifth and Fourteenth Amendments, to create a so-called zone of privacy constitutionally beyond the reach of governmental intrusion. But the United States Supreme Court is extremely reticent in extending the reach of the Due Process Clauses in substantive matters, albeit this is the jurisprudence of this century and not before, following President Franklin D. Roosevelt’s court packing efforts in the 1930’s.

Bowers v. Hardwick, supra, expresses this reticence. The United States Supreme Court, defining the reach of the zone of privacy in terms of federal due process analysis, limits rights of privacy to “liberties that are ‘deeply rooted in this Nation’s history and tradition.’ ” 478 U.S. at 192, 106 S.Ct. at 2844. Sodomy is not one of them. Bowers v. Hardwick decides that rights protected by the Due Process Clauses in the Fifth and Fourteenth Amendments to the United States Constitution do not “extend a fundamental right to homosexuals to engage in acts of consensual sodomy.” See 478 U.S. at 192, 106 S.Ct. at 2844.

Bowers decides nothing beyond this. But state 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.” 478 U.S. at 192. Kentucky constitutional guarantees against government intrusion address substantive rights. The only reference to individual liberties in the Federal Constitution is the statement in the Preamble that one of the purposes in writing in the Constitution is to “secure the Blessings of Liberty to ourselves and our Posterity.” Similarly, the Kentucky Constitution has a Preamble:

“We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution.”

But the Kentucky Constitution of 1891 does not limit the broadly stated guarantee of individual liberty to a statement in the Preamble. It amplifies the meaning of this statement of gratitude and purpose with a Bill of Rights in 26 sections, the first of which states:

Ҥ 1. All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties.

Third: The right of seeking and pursuing their safety and happiness.

§ 2. Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

While addressing some of the same considerations as those expressed in the Preamble to the Federal Constitution, none of this textual material appears in the Federal Constitution. Both the record of the 1890-91 debates and the opinions of Justices of this Court who were the contemporaries of our founding fathers express protection of individual liberties significantly greater than the selective list of rights addressed by the Federal Bill of Rights. There was no mention of a right of privacy in these debates only because the concept was not verbalized as such until after the article by Warren and Brandéis, The Right of Privacy, 4 Harv.L.Rev. 193, December 15, 1890, had been publicly disseminated. The ideas Brandéis and Warren expressed in that article as the “right of privacy” were neither unique to the authors nor confined to the Harvard Law School. They were an expression of contemporary thought.

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):

“[Tjhose 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, supra. 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. Id. 117 S.W. at 385.

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 re-quires_ 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. [Emphasis added.]

... 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. at 386.

The Court concludes, at p. 387:

“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....” Id. at 385.

In Adams Exp. Co. v. Kentucky, 238 U.S. 190, 35 S.Ct. 824, 59 L.Ed. 1267 (1915), the United States Supreme Court quotes this language from the Campbell case, and then holds:

“It therefore follows that, inasmuch as the facts of this case show that the liquor was not to be used in violation of the laws of the state of Kentucky, as such laws are construed by the highest court of that state, the Webb-Kenyon [federal] law has no application and no effect to change the general rule that the states may not regulate commerce wholly interstate.” Id. 238 U.S. at 202, 35 S.Ct. at 828, 59 L.Ed. at 1271.

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 Nineteenth Amendment of the United States Constitution. In 1907, in Board of Trustees of Town of New Castle v. Scott, 125 Ky. 545, 101 S.W. 944 (1907), Chief Justice O’Rear passionately attacked the evil of alcohol in a pro-prohibition ruling interpreting Section 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. 101 S.W. at 948.

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.

Nor is the Campbell case an aberration. Subsequent cases cited and followed Campbell. In Commonwealth v. Smith, 163 Ky. 227, 173 S.W. 340 (1915), citing Campbell, the Court declared a statute unconstitutional that had led to Smith being arrested for drinking beer in the backroom of an office:

“The power of the state to regulate and control the conduct of a private individual is confined to those cases where his conduct injuriously affects others. With his faults or weaknesses, which he keeps to himself, and which do not operate to the detriment of others, the state as such has no concern.” Id., 173 S.W. at 343.

The holding in Smith is that “the police power may be called into play [only] when it is reasonably necessary to protect the public health, or public morals, or public safety.” [Emphasis added.]

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 Hershberg v. City of Barbourville, 142 Ky. 60, 133 S.W. 985 (1911), also citing Campbell, the Court declared an ordinance which purported to regulate cigarette smoking in such broad terms that it could be applied to persons who smoked in the privacy of their own home “unreasonably interfere[ed] with the right of the citizen to determine for himself such personal matters.” 133 S.W. at 986.

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, supra. Then in 1927, in Brents v. Morgan, supra, 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. at 971, quoting 21 RCL parg. 3, p. 1197.

See also Grigsby and Wife v. R.J. Breckinridge, 65 Ky. (2 Bush) 480 (1867) and Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849 (1912), for further confirmation that the right of privacy has long been considered an inalienable right legally protected in this state.

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.” 117 S.W. at 386.

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. Id. 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 Hamp-stead.

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, most recently: Ingram v. Commonwealth, Ky., 801 S.W.2d 321 (1990), involving protection against double jeopardy and Dean v. Commonwealth, Ky., 777 S.W.2d 900 (1989), involving the right of confrontation. Perhaps the most dramatic recent example of protection of individual rights under the state Constitution where the United States Supreme Court had refused to afford protection under the Federal Constitution, is Rose v. Council for Better Educ., Inc., Ky., 790 S.W.2d 186 (1989). In Rose, our Court recognized our Kentucky Constitution afforded individual school children from property poor districts a fundamental right to an adequate education such as provided in wealthier school districts, even though 16 years earlier the United States Supreme Court held the Federal Constitution provided no such protection in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). The United States Supreme Court found there was no constitutional, or fundamental, right to a particular quality of education which justified invoking the Equal Protection Clause of the Fourteenth Amendment. Our Court found a duty in the Kentucky constitutional requirement that the General Assembly “provide an efficient system of common schools.” Ky. Const. Sec. 183. In so doing we stated:

“We have decided this case solely on the basis of our Kentucky Constitution, Sec. 183. We find it unnecessary to inject any issues raised under the United States Constitution or the United States Bill of Rights in this matter.” Rose at 215.

In Fannin v. Williams, Ky., 655 S.W.2d 480 (1983), we held unconstitutional a statute that would permit the state librarian to supply textbooks to children in the state’s non-public schools, even though in Bd. of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), the United States Supreme Court had held a statute accomplishing a similar purpose did not violate the “establishment of religion” clause in the United States Constitution. We stated:

“The problem in this case is not whether the challenged statute passes muster under the federal constitution as interpreted by the United States Supreme Court, but whether it satisfies the much more detailed and explicit proscriptions of the Kentucky Constitution. It does not.” 655 S.W.2d at 483.

We view the United States Supreme Court decision in Bowers v. Hardwick, supra, 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 Fourteenth Amendment. Nevertheless, in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (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.” 478 U.S. at 193-94, 106 S.Ct. at 2845-46. 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, Sec. 213.2:

“Section 213.2 of the Model Code makes a fundamental departure from pri- or 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, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980); and Pennsylvania in Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980). There are two other states where lower courts have ruled such statutes unconstitutional: Texas v. Morales, 826 S.W.2d 201 (Texas.App.—Austin 1992); Michigan Organization for Human Rights v. Kelly, No. 88-815820(CZ) (Wayne County Circuit Court, July 9, 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. Decisions of the Pennsylvania Supreme Court interpreting like clauses in the Pennsylvania Constitution are uniquely persuasive in interpreting our own. It is a singular coincidence that in 1980 the Pennsylvania Supreme Court reached to the same roots in interpreting its Constitution as our Court did in the Campbell case, quoting at length from the “great philosopher, John Stuart Mill, in his imminent and apposite work, On Liberty (1859),” and utilizing the same quotes. Id. at 50. The Pennsylvania Court also provides this guidance:

“With respect to regulation of morals, the policy power should properly be exercised to protect each individual’s right to be free from interference in defining and pursuing his own morality but not to enforce a majority morality on persons whose conduct does not harm others. ‘No harm to the secular interest of the community is involved in atypical sex practice in private between consenting adult partners.’ ” Model Penal Code, Sec. 207.5-Sodomy and Related Offenses. Comment (tent, draft no. 4, 1955).

“Many issues that are considered to be matters of morals are subject to debate, and no significant state interest justifies legislation of norms simply because a particular belief is followed by a number of people, or even a majority.... Enactment of the voluntary deviate sexual intercourse statute, despite that it provides punishment for what many believe to be abhorrent crimes against nature and perceived sins against God, is not proper in the realm of the temporal police power.”

The Commonwealth has cited State v. Walsh, 713 S.W.2d 508 (Mo.1986), wherein the Missouri Supreme Court rejected a constitutional challenge to a statute similar to ours criminalizing homosexual intercourse. The Missouri court states “[t]he issue is whether the Fourteenth Amendment to the United States Constitution prohibits the state from proscribing homosexual conduct.” Id. at 509. No state constitutional law issues were raised in the Walsh case. The Court addressed federal law only and simply followed in lock step the decision of the United States Supreme Court in Bowers v. Hardwick. It then undertook an equal protection analysis also based solely on its view of federal equal protection law, again silent as to the Missouri Constitution. We find nothing in the State v. Walsh opinion that provides appropriate guidance for us.

II. EQUAL PROTECTION

As stated earlier, in Bowers v. Hard-wick, supra, 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.’ ” 478 U.S. at 191-92, 106 S.Ct. at 2844-45.

In Watkins v. U.S. Army, 875 F.2d 699 (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.” Id., 875 F.2d at 718.

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. Indeed, the two propositions may be complimentary: In all probability, homosexuality is not considered a deeply-rooted part of our traditions precisely because homosexuals have historically been subjected to invidious discrimination. In any case, homosexuals do not become ‘fair game’ for discrimination simply because their sexual practices are not considered part of our mainstream traditions.” Id. at 719. [Emphasis original.]

“This principle of equal treatment, when imposed against majoritarian rule, arises from the Constitution itself, not from judicial fiat. Moreover, equal protection doctrine does not prevent the majority from enacting laws based on its substantive value choices. Equal protection simply requires that the majority apply its values evenhandedly.” Id. at 720.

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, 427 U.S. 495, 505 [96 S.Ct. 2755, 2762, 49 L.Ed.2d 651] (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., 704 S.W.2d 179 (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., 808 S.W.2d 809, 818 (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.”

Section 59 denies the General Assembly the power to “pass local or special acts ... Fourth: to regulate the punishment of crimes and misdemeanors.” Kentucky adopted the Model Penal Code in 1974, including its sections on deviate sexual intercourse, and then engrafted upon it a “special act” punishing consensual deviate sexual activity only of persons of the same sex. We do not condone the immorality of such activity when we recognize that this is punishing people because they are different rather than because of what they are doing.

In Tabler v. Wallace, supra, we stated: “A number of different reasons have been suggested by the defendants and those filing amicus curiae briefs on their behalf for creating a separate classification for these groups. But these are offered only as possible reasons that could have existed, not as reasons that did in fact exist. The justifications offered are largely self-contradictory.” 704 S.W.2d at 185.

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.

STEPHENS, C.J., and COMBS, LEIBSON and SPAIN, JJ., concur.

COMBS, J., concurs by separate opinion in which STEPHENS, C.J., joins.

LAMBERT, J., dissents by separate opinion in which REYNOLDS, J., joins. WINTERSHEIMBER, J., dissents by separate opinion in which REYNOLDS, J., concurs in results only.

1 . Specifically, the associations and organizations represented on these Amici Curiae Briefs are: American Psychological Association, Kentucky Psychological Association, Kentucky Psychiatric Association, Kentucky Chapter of the National Association of Social Workers, and Kentucky Society for Clinical Social Workers; American Public Health Association, Community Health Trust, Inc., Heart To Heart, Inc., St. Jude Guild, Inc., and AIDS Education Coalition, Inc.; American Friends Service Committee, American Jewish Committee, Central Presbyte-rían Church, Louisville, First Unitarian Church of Louisville, Honesty, Louisville, Lexington Friends Meeting, Religious Society of Friends (Quakers), The United Church of Christ, Telos, Louisville, The Temple, Union of American Hebrew Congregations, Unitarian Universalist Association and Universalist Church of Lexington, Central Kentucky Council for Peace and Justice, Fellowship of Reconciliation, Central Kentucky and Louisville Chapters, Presbyterian Church [U.S.A.] and the United Methodist Church.