Commonwealth v. Bonadio
1980 Pa. LEXIS 647, 490 Pa. 91, 415 A.2d 47 (1980)
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Rule of Law:
A statute that criminalizes specific consensual sexual acts between unmarried persons but permits the same acts between married persons violates the Equal Protection Clause, as the classification based on marital status is not rationally related to any legitimate state interest.
Facts:
- Mildred Kannitz and Shanne Wimbel were performers at the Penthouse Theater in Pittsburgh, where Patrick Gagliano was the manager and Michael Bonadio was the cashier.
- As part of a show for which patrons paid an admission fee, Kannitz and Wimbel engaged in sexual acts on stage with members of the audience.
- The theater was open to any member of the public who paid the required admission fee.
- Plainclothes police officers paid the fee, entered the theater, and witnessed the performances.
- Following the performance, the officers arrested the performers, participating audience members, the manager Gagliano, and the cashier Bonadio.
Procedural Posture:
- The Commonwealth of Pennsylvania charged the appellees in the Court of Common Pleas of Allegheny County with voluntary deviate sexual intercourse and/or criminal conspiracy.
- The appellees filed a pre-trial omnibus motion to quash the information, arguing that the statute was unconstitutional on its face.
- The Court of Common Pleas, as the trial court, granted the motion and dismissed the charges.
- The Commonwealth, as the appellant, appealed the trial court's order to the Supreme Court of Pennsylvania.
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Issue:
Does a state statute that criminalizes voluntary deviate sexual intercourse for unmarried persons, while permitting the same acts for married persons, violate the Equal Protection Clause of the Constitution?
Opinions:
Majority - Flaherty, Justice.
Yes. A statute that criminalizes voluntary deviate sexual intercourse for unmarried persons but not for married persons is unconstitutional because it violates the Equal Protection Clause. The police power does not extend to enforcing a majority's morality on consenting adults whose conduct does not harm others. Furthermore, the statute's classification based on marital status fails the rational basis test, as it is not reasonably related to any valid legislative objective. The Commonwealth's justification of promoting marital privacy is not a rational basis for the distinction, because if the conduct were truly harmful enough to be criminalized, it should be proscribed for all persons, regardless of marital status.
Concurring - Eagen, Chief Justice.
Yes. The statute is unconstitutional because it violates the constitutional right of equal protection.
Concurring - Larsen, Justice.
Yes. The statute is unconstitutional on equal protection grounds. However, all public sexual intercourse should be illegal, not only acts performed by single persons.
Dissenting - Roberts, Justice.
No. The majority's facial invalidation of the statute is improper because the defendants' conduct occurred publicly on a stage before an audience. As the statute can be constitutionally applied to prohibit such public acts, there is no basis to strike it down entirely based on hypothetical private applications.
Dissenting - Nix, Justice.
No. The statute is constitutional as applied to the defendants' conduct. This case involves a public display of sexual behavior for pay, which is squarely within the state's police power to regulate for public health, safety, and morals. The majority's focus on privacy and its facial invalidation are inappropriate. The equal protection argument is a 'red herring' because the marital exception was intended to protect private marital intimacy, not to license public commercial sex acts for married couples.
Analysis:
This decision represents a significant application of the Equal Protection Clause to strike down a morals-based law regulating consensual sexual conduct. By finding that marital status is not a rational basis for criminalizing such behavior, the court limited the state's police power to legislate morality where no direct harm to others is present. This case presages the reasoning later used by the U.S. Supreme Court in cases like Lawrence v. Texas, establishing a precedent at the state level that private, consensual adult conduct is protected from arbitrary government intrusion and discriminatory classifications.
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