Appeal from Shawnee District Court; JAMES P. BUCHELE, judge. Opinion filed April 24, 1998. Affirmed.
John J. Ambrosio, of John J. Ambrosio, Chartered, and Matthew A. Coles and Taylor Flynn, of American Civil Liberties Union Foundation and American Civil Liberties Union of Kansas, for appellant.
Tracy T. Diel and John Knoll, assistant city attorneys, for appellee.
Lynette Petty, of Washburn Law School Clinic, Charlene Muehlenhard, of Lawrence, and Howard Ruppel, Jr., of Mt. Vernon, Iowa, for amicus curiae Society for the Scientific Study of Sexuality.
Karen A. Eager, Charlene L. Smith, and William Rich of Washburn University School of Law, for amicus curiae Washburn University School of Law Gay and Lesbian Network.
James D. Wilets, of Miami, Florida, and Sheila Reynolds, of Washburn University School of Law, for amicus curiae The Inter-American Center for Human Rights.
Before BRAZIL, CJ., GREEN, J., and D. KEITH ANDERSON, District Judge, assigned.
Per Curiam: Max Movsovitz appeals the district court's affirmance of his municipal court conviction for violating City of Topeka Code § 54-133 (1995 Supp.), solicitation of sodomy. Movsovitz challenges the constitutionality of the ordinance and its underlying authority, K.S.A. 21-3505.
On the afternoon of April 28, 1995, Max D. Movsovitz, a homosexual, self-employed artist, was doing some paperwork in his car in Gage Park, a public park. As he sat in his car, appellant was approached separately by two men who turned out to be undercover Topeka police officers.
First, a man, later identified as Kip Lowe, stopped his vehicle next to appellant. The two men engaged in casual conversation. Eventually, the conversation turned to a sexual nature. Appellant claimed that Lowe told him that his name was "Kevin." Appellant believed that Lowe was coming on to him. Lowe asked appellant about the gay club scene in Topeka and asked appellant what he got into and what he liked to do. The two men exchanged names and Lowe left.
Later, another man drove up next to appellant and asked whether he was there to meet someone. Appellant responded that he was not waiting for anyone. The two proceeded to engage in casual conversation for a few minutes. Then, the man, who was subsequently identified as Officer Todd Pfortmiller, told appellant that he was looking for a friend and asked appellant whether he was into that, to which appellant responded that he was.
Pfortmiller asked appellant what he liked to do. Appellant told Pfortmiller he was into safe sex, but not analsex. Pfortmiller asked appellant what he could do for him (Pfortmiller), and appellant responded that he was into oral sex. Pfortmiller then asked appellant whether he would be willing to give him oral sex, and appellant responded that he would. Pfortmiller also claimed that appellant asked that Pfortmiller give him oral sex.
After this exchange, Pfortmiller disclosed that he was with the Topeka Police Department and issued Movsovitz a citation for violation of Code § 54-133, solicitation of sodomy.
A trial was held in municipal court and a finding of guilty was made
by the municipal court judge. This judgment was appealed to the Shawnee
County District Court. Appellant then filed a motion to dismiss the matter
because Code § 54-133 was unconstitutional. Upon a stipulation of
the parties, the record of trial was submitted to the district court. After
reviewing the evidence, the district court dismissed appellant's motion
and affirmed the municipal court's decision.
I. K.S.A. 21-3505(a)(1)
Movsovitz was charged with violating Code § 54-133, which prohibits soliciting or agreeing to participate in an act of sodomy. The ordinance reads as follows: "It shall be unlawful upon the streets or in other public places within the corporate limits of the city for any person to solicit or agree with any other person to participate in an act of prostitution or sodomy." Code § ~133(a) (1995 Supp.).
Under the Code, sodomy is defined as "oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex, or between a person and an animal, or coitus with an animal." Code § 54-133~) (1995 Supp.).
The underlying authority for the ordinance is K.S.A. 21-3505, which defines criminal sodomy. It states in relevant part: "Sodomy between persons who are 16 or more years of age and members of the same sex or between a person and an animal." K.S.A. 21-3505(a)(1).
Appellant argues that the sodomy statute is unconstitutional, and therefore, he was improperly charged with a violation of Code § 54-133.
The constitutionality of a statute is a question of law, and this court
has de novo review. See Peden V. Kansas Dept. of Revenue, 261 Kan.
239, Syl. ¶ 1, 930 P.2d 1 (1996), cert. denied ___ U.S. 137
L. Ed. 2d 1029 (1997). The instant case was submitted to the district court
on stipulated facts, and, therefore, on appeal, "this court is afforded
the same opportunity to consider the evidence as the trial court."
Memorial Hospital Ass 'n, Inc. V. Knutson, 239 Kan. 663, 668, 722 P.2d
A. RIGHT TO PRIVACY
Appellant argues that pursuant to the privacy provisions of the state and federal Constitutions, the City may not criminalize two competent adults for participating in sexual conduct which is private, noncommercial, and consensual.
Thus, he contends that Code § 54-133 and the underlying K.S.A. 21-3505(a)(1) violate his state and federal right to privacy. He concedes that the United States Supreme Court refused to extend the federal right to privacy to include private, consensual sodomy between two gay men. See Bowers V. Hardwick, 478 U.S. 186, 196, 92 L. Ed. 2d 140, 106 5. Ct. 2841(1986). He argues that Bowers was wrongly decided.
In Bowers, the United States Supreme Court upheld a Georgia sodomy statute that made oral or anal intercourse a felony. In doing so, the Court held that there was no fundamental right to privacy under the federal Constitution which extended to private, consensual, homosexual sodomy. Although the sodomy statute applied to heterosexual sodomy as well as homosexual sodomy, the Court limited its discussion to homosexual conduct. However, even if there is no substantive due process privacy right claim under the federal Constitution for homosexual conduct, it does not speak to privacy rights under the Kansas Constitution.
A state may confer liberties which are more expansive in its state constitution than those provided in the federal Constitution.
Com. V. Wasson, 842 S.W.2d 487 (Ky. 1992), involved issues similar to the case at hand. In Wasson, Jeffrey Wasson was charged with soliciting deviate sexual intercourse. He was charged under Ky. Rev. Stat. § 506.030 (1990), which covered solicitation to commit any offense. The issue before the court was whether Ky. Rev. Stat. § 510.100 (1990), punishing "'deviate sexual intercourse with another person of the same sex,"1 the underlying criminal offense, was constitutional. 842 S.W.2d at 488. In Wasson, as in the present case, the Commonwealth advanced morality as support for the underlying statute. 842 S.W.2d at 490.
The Wasson court found that the Kentucky Constitution offered greater protection of the right of privacy than provided by the federal Constitution, and the right to privacy applied to a solicitation to commit consensual, same-sex sodomy. 842 S.W.2d at 491, 497-98. It therefore found Ky. Rev. Stat. § 510.100 to be unconstitutional. 842 S.W.3d at 491. See also State V. Ciuffini, 164 NJ. Super. 145, 395 A.2d 904 (1978) (Superior Court of New Jersey found that acts of sodomy between consenting adults were protected by the right of privacy).
However, Kansas courts have not heretofore conferred a greater privacy right on a Kansas citizen pursuant to the Kansas Constitution. As noted by the City in its brief, the language of Section 1 of the Bill of Rights of the Kansas Constitution mirrors the Preamble of the United States Constitution, whereas the language of the Kentucky Constitution does not. Absent some indication by our Supreme Court to find that our Constitution provides greater privacy rights than the United States Constitution, this court chooses to rely on Bowers V. Hardwick.
As to Code § 54-133, we find appellant's argument that prohibition against public solicitation of prostitution or sodomy somehow violates his federal and state right to privacy to be without merit.
We conclude that there is no fundamental right to privacy under either
the Kansas or United States Constitution which extends to private consensual
B. EQUAL PROTECTION
The Kansas sodomy statute has been revised over the years. The statute was derived from a general statute in the 1855 Statutes of the Kansas Territory which defined "crime against nature" as "[e]very person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, shall be punished by confinement and hard labor not less than ten years." 1855 Kansas Territorial Laws, ch. 53, § 7. At that time, a "crime against nature" affected both heterosexual and homosexual acts. That law remained in effect, with little change in language, until 1969. In 1969, the legislature enacted the following:
"Sec. 21-3505. Sodomy. Sodomy is oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex, or between a person and an animal, or coitus with an animal. Any penetration, however slight, is sufficient to complete the crime of sodomy." L. 1969, ch. 180, § 35.In 1983, the Kansas Legislature amended K.S.A. 21-3505 to state that criminal sodomy, with regard to consenting adults, was an act between members of the "same sex" as follows:
Sec. 5. K.S.A. 21-3505 is hereby amended to read as follows: 21-3505. (1) Criminal sodomy is (deleted: oral or anal copulation) sodomy between persons who are (deleted: not husband and wife or consenting adult) members of the (deleted: opposite) same sex, or between a person and an animal, (deleted: or coitus with an animal. Any penetration, however slight, is sufficient to complete the crime of sodomy). L. 1983, ch. 109, § 5.However, sodomy, as defined in K.S.A. 21-3501, did not include same sex acts between females. In 1991, the legislature amended the definition of sodomy in K.S.A. 21-3501 as follows: "'Sodomy' means oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object." L. 1991, ch. 86, § 1(2).
By changing the definition, same sex acts between females could also be incorporated into K.S.A. 21-3505. Thus, with regard to sexual activity between persons, only the sexual conduct of gay men, lesbians, and bisexuals would fall within the criminal sodomy statute.
Appellant argues that pursuant to the equal protection provisions of the state and federal Constitutions, the statute is impermissible discrimination on the basis of sexual orientation and gender.
"A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent mtent of the legislature in passing the statute." Peden, 261 Kan. 239, Syl. ¶ 2."The guarantee of equal treatment under federal law is dependent upon interpretation of the due process clause of the Fifth Amendment." Farley v. Engelken, 241 Kan. 663, 668, 740 P.2d 1058 (1987). The Equal Protection Clause of the Fourteenth Amendment to the Constitution provides that no state shall "'deny to any person within its jurisdiction the equal protection of the laws."' 241 Kan. at 667. The Kansas counterpart to that is found in the Kansas Constitution Bill of Rights, §§ 1, 18. Those sections provide:
"§ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.The United States Supreme Court currently recognizes the three levels of scrutiny in analyzing equal protection claims. Farley, 241 Kan. at 669. The first level of review is the least strict, the "rational basis" test. 241 Kan. at 669. The court must determine whether a statutory classification bears some reasonable relationship to a valid legislative purpose. KPERS v. Reimer & Koger Assocs., Inc., 261 Kan. 17, 41-42, 927 P.2d 466 (1996). The constitutional safeguard is offended if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. 241 Kan. at 669 (citing McGowan V. Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, ~ S. Ct. 1101 ).
"§ 18. Justice without delay. All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay."
The next level of judicial review in equal protection is "heightened scrutiny." Farley, 241 Kan. at 669. It applies to "quasi-suspect" classifications, and it requires the statutory classification to substantially further a legitimate legislative purpose. 241 Kan. at 669.
Finally, the most strict standard of scrutiny, "strict scrutiny," applies in cases involving suspect classifications and fundamental rights expressly or implicitly guaranteed by the Constitution. 241 Kan. at 669.
"The following factors have been suggested as typical of suspect classifications: The classifications are based on traits over which the individual has no control, the classifications 'are frequently the reflection of historic prejudices rather than legislative rationality,' the groups discriminated against 'are relatively powerless to protect their interests in the political process,' and they have been 'subjected to .. . a history of purposeful unequal treatment."' Note, The Constitutionality,of Laws Forbidding Private Homosexual Conduct, 72 Mich. L. Rev. 1613, 1625 (1974).Appellant suggests that "strict scrutiny" should be applied, but claims that, even under the "rational basis" standard, the lowest level of scrutiny, the statute still violates the Equal Protection Clause of the federal and state Constitutions.
Based on case law, it appears that homosexuals are subject to the "rational basis" test. See Rich V. Secretary of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984) (court held that a "classification based on one's choice of sexual partner is not suspect"); Jantz V. Muci, 976 F.2d 623, 630 n.3 (10th CIr. 1992), cert. denied 508 U.S. 952 (1993) (Although the issue was not directly addressed, the court noted that in Rich, 735 F.2d 1220, it had "held that a status-based classification was not inherently suspect." See also Bowers V. Hardwick, 478 U.S. at 192-94, holding that such conduct (sodomy) is not a fundamental right.
And, most recently, in Romer v. Evans, 517 U.S. 620, 631, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996), the Supreme Court, in striking down an amendment to the Colorado Constitution which categorically precluded governrnental action designed to protect persons from discrimination based on their homosexual practices, stated: "[W]e will uphold the legislative classification so long as it bears a rational relation to some legitimate end."
Again, under the "rational basis" standard of review, "a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous." Romer, 517 U.S. at 632. "[T)he legislative classification 'must bear a rational relationship to a legitimate objective.' [Citation omitted.]" Jurado V. Popejoy Constr. Co., 253 Kan. 116, 123, 853 P.2d 669 (1993). "The rational basis test is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State's legitimate objective. [Citation omitted.]" KPERS, 261 Kan. at 42. "By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law." Romer, 517 U.S. at 633. "[T]he burden is on the party challenging the statute to prove that no rational basis exists. [Citation omitted.]" Jurado, 253 Kan. at 123.
The City justifies Code § 54-133 upon its interest in promoting morality. The appellant argues that promotion of morality is not a sufficient compelling interest to justify the regulation of a fundamental right.
However, if a fundamental right were involved, Code § 54-133 would be subject to a level of strict scrutiny. But, the conduct prohibited by both K.S.A. 21-3505(a)(1) and Code § 54-133 are not fundamental rights, and rational basis level of scrutiny applies. See Bowers, 478 U.S. at 194, 196.
In Bowers, the respondent argued that even if homosexual sodomy is not a fundamental right, morality is an inadequate rationale to support the law. In response, the Court said: "The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U.S. at 196.
The City, pursuant to its police power, has the right to promote morality. See Berman V. Parker, 348 U.S. 26, 99 L. Ed. 27, 75 5. Ct. 98 (1954).
Appellant asserts that the statute discriminates on the basis of sexual orientation because only conversations about sex between two people of the same gender are prohibited by the ordinance. He claims that it discriminates on the basis of sexual orientation since having intimate relationships with people of the same gender is what distinguishes homosexuals from heterosexuals.
In Romer, the Court stated: "'[I]f the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.' Department of Agriculture V. Moreno, 413 U.S. 528, 534f, 37 L. Ed. Zd 782, 93 5. Ct. 2821] (1973)." Romer, 517 U.S. at 634-35.
It found that there was no public purpose which existed for the law but, rather, that it was based on animus towards homosexuals. Romer, 517 U.S. at 635.
However, Romer involved people's condition, not people's conduct. Shahar V. Bowers, 114 F.3rd 1097, 1110 (11th Cir. 1997). Colorado voters adopted by statewide referendum an amendment to the state constitution precluding any governmental actions designed to protect the status of persons based on their "'homosexual, lesbian or bisexual orientation, conduct, practices or relationships."' Romer, 517 U.S. at 620. The Supreme Court found that the amendment went beyond merely depriving them of special rights and imposed a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions. Romer, 517 U.S. at 631. The court in Shahar also noted that Romer did not overrule or disapprove Bowers V. Hardwick, which involved conduct rather than people's conditions. 114 F.3rd at 1110 n. 25.
That distinction can also be made in the present case. The City's ordinance does not criminalize a person's sexual orientation. Rather, it prohibits the conduct of any person seeking to solicit or agree with any other person, in a public place, participation in an act of prostitution or sodomy.
In Wasson, the Commonwealth argued against permitting sexual behavior preferred by homosexuals to be protected under the Equal Protection Clause by claiming that homosexuals were not a protected class, and as long as the discrimination was not race or gender related, the law punished the act and not the preference. 842 S.W.2d at 499.
The Wasson court determined that under the Kentucky Constitution, homosexuals were a separate and identifiable class because no class of persons could be discriminated against under its constitution. 842 S.W.2d at 500.
However, as with the privacy issue discussed above, the majority opinion noted that the Kentucky Constitution is much more detailed and specific than the Equal Protection Clause of the United States Constitution.
To the contrary, §§ 1 and 18 of the Kansas Constitution Bill of Rights are the counterparts of the Equal Protection Clauses in the Fifth and Fourteenth Amendments of the United States Constitution.
In Wasson, three justices dissented. Justice Lambert, in his dissent (joined by another justice), responded to an argument similar to an argument raised by Movsovitz in the present case.
"In final analysis, the question is whether a rational distinction may be drawn between acts of sodomy committed by heterosexuals and homosexuals. As cases such as Griswold V. Connecticut, supra, Eisenstadt V. Baird, supra, Loving V. Virginia, supra, and Roe V. Wade, supra, demonstrate, there is a heightened protection of the right of persons with respect to conduct in the context of marriage, procreation, contraception, family relationships, and child rearing and education. As such considerations are without any application as to acts of homosexual sodomy, the distinction is manifest." Wasson, 842 S.W. 2d at 509.The dissent then observes that notwithstanding the majority's statement that it was not condoning the immorality of such activity, the majority opinion would nevertheless "be regarded as the imprimatur of Kentucky's highest court upon homosexual conduct." Wasson, 842 S.W.2d at 509.
In the Romer dissent, Justice Scalia discusses a problem which can arise when a criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. Romer, 517 U.S. at 645. Although he was referring to a different problem, the same point can be made when courts invalidate statutes based on public morality.
As noted earlier, the Kansas sodomy statute has been revised at least three different times. As societal values evolve, the legislature may follow some other state legislatures and decriminalize private sexual behavior between all consenting adults as proposed by the Modern Penal Code. See Comment, Intercourse Against Nature: The Role of the Covenant on Civil and Political Rights and the Repeal of Sodomy Laws in the United States. 18 Houston Journal of International Law 525, 533 (1996).
Indeed, there are many people in society today that would argue that rather than following the Modern Penal Code, the lawmakers should recognize our traditional morality and prohibit all sexual activity outside of marriage. However, these are issues that should be addressed by legislatures and not courts.
We conclude that Code § 54-133 and K.S.A. 21-3505(a)(1) are directed
at certarn conduct, not at a class of people; that Movsovitz is not a member
of a suspect class; that homosexual sodomy and solicitation of sodomy are
not fundamentally protected rights; and that protecting public morality
is a rational basis for the ordinance and the statute under the Equal Protection
II. RESTRAINT ON FREEDOM OF EXPRESSION
Finally, appellant claims that the free expression provisions of the federal and state Constitutions do not allow the City to criminalize conversations about sodomy. Appellant argues that, because the underlying sodomy statute is unconstitutional, Code § 54-133 is content-based regulation of speech.
Because the underlying sodomy statute is not unconstitutional, the solicitation of sodomy prohibited by Code § 54-133 is not protected speech.
In Riley V. United States, 298 A.2d 228, 229 (D.C. 1972), cert. denied 414 U.S. 840 (1973), the defendant was convicted of soliciting for lewd and immoral purposes. The conviction was based on his act of soliciting a male police officer to have sex. Defendant asserted a vagueness argument and also contended that his First Amendment right to free speech was violated through enforcement of the statute. The court found no vagueness in the statute. With regard to the First Amendment argument, it held: "[P]rohibiting solicitation for the offense of sodomy is within the domain of state power. We know of no authoritative holding which extends First Amendment protection to a solicitation to commit an act lawfully prohibited by statute." 298 A.2d at 233.