Commonwealth v. Wasson
842 S.W.2d 487, 1992 Ky. LEXIS 140, 1992 WL 235412 (1992)
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Rule of Law:
A state statute that criminalizes private, consensual deviate sexual intercourse between persons of the same sex, but not between persons of differing sexes, violates the broader rights to privacy and equal protection guaranteed by the Kentucky Constitution.
Facts:
- Lexington police were conducting an undercover operation in a downtown parking area.
- An undercover officer, wearing plain clothes and a microphone, engaged Jeffrey Wasson in a conversation lasting approximately 20-25 minutes.
- Toward the end of the conversation, Wasson invited the officer to his residence.
- When the officer prodded Wasson for details, Wasson suggested they engage in sexual activities that were criminalized by KRS 510.100.
- The proposed sexual activity was to take place in the privacy of Wasson's home.
- The activity was intended to be between consenting adults, and no money was offered or solicited.
Procedural Posture:
- Jeffrey Wasson was charged in Fayette District Court with solicitation to commit deviate sexual intercourse.
- Wasson filed a motion to dismiss, arguing that the underlying statute, KRS 510.100, was unconstitutional under the Kentucky Constitution.
- The Fayette District Judge, a trial court of first instance, granted the motion and dismissed the charge, finding the statute violated the right to privacy.
- The Commonwealth, as appellant, appealed the dismissal to the Fayette Circuit Court.
- The Fayette Circuit Court, an intermediate appellate court, affirmed the District Court's judgment, holding that the statute violated both the right to privacy and equal protection guarantees of the Kentucky Constitution.
- The Commonwealth appealed again, and the Supreme Court of Kentucky, the state's highest court, granted transfer to hear the case.
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Issue:
Does Kentucky's statute criminalizing deviate sexual intercourse between persons of the same sex, but not between persons of different sexes, violate the rights to privacy and equal protection guaranteed by the Kentucky Constitution?
Opinions:
Majority - Leibson, Justice.
Yes. A statute criminalizing private, consensual sexual activity between persons of the same sex violates the rights to privacy and equal protection under the Kentucky Constitution. The guarantees of individual liberty in the Kentucky Constitution offer greater protection of the right of privacy than the Federal Constitution as interpreted in Bowers v. Hardwick. Kentucky has a long tradition, evidenced in cases like Commonwealth v. Campbell, of protecting a citizen's right to be let alone in matters of private conduct that do not directly injure society. The government cannot invade a citizen's life and regulate their conduct based purely on majoritarian morality. Furthermore, the statute violates the equal protection guarantees of the Kentucky Constitution because it singles out homosexuals for criminal punishment for engaging in the same acts that are permissible for heterosexuals, which is an arbitrary classification lacking a rational basis.
Concurring - Combs, Justice.
Yes. The Kentucky Constitution recognizes primordial, inalienable rights and creates a government to protect, not take away, those rights. The government's authority to interfere with one's liberty derives solely from its duty to preserve the liberty of another. Where conduct is private, consensual, harms no one, and is removed from the rights of others, state interference is per se arbitrary and unconstitutional. Morality is a private matter of conscience, and the Constitution, which values individual freedom, liberty, and equality, does not enforce a majoritarian moral code.
Dissenting - Lambert, Justice.
No. The Kentucky Constitution does not deny the legislature the right to prohibit homosexual conduct. Proscriptions against sodomy have deep historical, religious, and common law roots that were in place when the Kentucky Constitution was adopted, and the text contains no right of privacy that would protect such acts. The majority's reliance on early 20th-century cases involving alcohol is an extreme application of John Stuart Mill's philosophy that would invalidate numerous other criminal statutes based on morality. The statute satisfies equal protection because it regulates conduct, not a class of people, and there is a rational basis for the state to protect public health and morality and to distinguish this conduct from conduct within the context of marriage and procreation.
Dissenting - Wintersheimer, Justice.
No. The Kentucky Constitution does not protect the conduct at issue. This case arose from a public solicitation, not a private act, so no reasonable expectation of privacy is implicated. The majority invents a right to privacy that lacks any basis in the constitutional text or history, ignoring precedent that interprets Kentucky's constitutional protections as being no greater than their federal counterparts. The legislature has a rational basis for the statute, including protecting public health and morals, and this Court should not usurp the legislature's role in making public policy.
Analysis:
This decision is a landmark in state constitutional law, establishing that the Kentucky Constitution provides greater protection for individual rights than the U.S. Constitution, particularly in the realm of privacy. By explicitly rejecting the U.S. Supreme Court's reasoning in Bowers v. Hardwick, the court solidified a strong, independent state constitutional right to privacy that protects consensual adult conduct from regulation based solely on majoritarian morality. Furthermore, the ruling provided a robust application of state equal protection principles, setting a significant precedent that laws classifying individuals based on sexual orientation lack a rational basis and are unconstitutionally arbitrary and discriminatory.
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