Kentucky court upholds right of gays to have sex in privacy of their homes

September 25, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Gay couples have a right, under a state constitutional guarantee of privacy, to have sex in their own homes, the Kentucky Supreme Court ruled yesterday in a major victory for homosexuals' rights.

The 4-3 ruling by the state tribunal ran directly contrary to a

famous Supreme Court decision six years ago, denying a right of privacy under the U.S. Constitution for gay sex.

State courts, however, have complete authority to interpret their own constitutions differently, and that is what the Kentucky court did in striking down the state's law making same-sex sodomy a crime, a decision that one civil rights lawyer called "a turning point, the most important gay rights decision" since the Supreme Court had ruled the other way in 1986.

The lawyer, Ruth Harlow, staff attorney for the American Civil Liberties Union who had worked on the Kentucky case, said the new decision "opens a whole new era in the sodomy law reform effort" across the country.

She said sodomy laws are used as a basis for many kinds of discrimination against gays. Other kinds of bias now will be under increasing attack, Ms. Harlow predicted.

Maryland is one of 24 states that still have anti-sodomy laws, making it a crime to have non-vaginal intercourse. Maryland's law, like those of six other states, make it a crime to engage in sodomy only if the partners are of the same sex. Seventeen other states also outlaw it between couples of different sex.

Courts in New York and Pennsylvania voided state sodomy laws in 1980, and lower courts in Michigan and Texas recently voided their sodomy laws. The Texas case is now awaiting review in that state's supreme court.

The Kentucky court said that the 1891 Kentucky constitution provides protection for privacy broader than the federal right of privacy as limited by the Supreme Court in 1986.

Noting that state officials had urged that "our court should march in lock step with the U.S. Supreme Court in declaring when such rights [of privacy] exist," the state court said it had a duty to interpret the Kentucky constitution "independently."

"Kentucky has a right and compelling tradition of recognizing and protecting individual rights from state intrusion," the court said. A right of privacy existed in Kentucky long before the Supreme Court defined such a right under the U.S. Constitution in 1965, it noted.

The state court relied primarily upon a 1909 decision striking down a state law making it a crime to drink liquor in private.

It declared: "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."

It added: "The majority has no moral right to dictate how everyone else should live."

The court also said the Kentucky sodomy law was invalid under the state constitution because it discriminated against gay couples only, allowing the same kind of sex between partners of different sex. The Supreme Court's 1986 decision did not involve a claim of discrimination.

"No class of persons can be discriminated under the Kentucky Constitution," the state court declared.

It rejected the state's argument that the law was valid because it prevented the spread of AIDS. It said that was a risk for those engaging in sodomy no matter what the sex of the partners.

It concluded: "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."

One of the three dissenting justices protested that the majority's opinion would promote homosexual sex activity because it counters claims that such conduct is immoral and unacceptable as a lifestyle.

The case grew out of a campaign against gay sex six years ago by Lexington police, who wore plain clothes and waited in parking cars in a downtown area to see if they would be offered sex. That campaign led to the prosecution for "deviate sexual intercourse" of Jeffrey Wasson, who was 23 years old at the time.

He was arrested after inviting an officer to "come home" with him. When the officer asked for details, Mr. Wasson suggested sexual activity. The state supreme court said no money was discussed, the activity was to occur in the privacy of Mr. Wasson's home, and it was intended to be a consenting act between adults.

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