stating "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."
How later courts described this case
- stating "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."
- holding 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"
- noting that cases interpreting the Pennsylvania Constitution are "uniquely persuasive" in construing the Kentucky Constitution because of the common heritage shared by the Kentucky Bill of Rights of 1792 and the Pennsylvania Bill of Rights of 1790
- applying the federal due process framework to a claim brought under both the Fourteenth Amendment and Section 2
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Gingerich v. Commonwealth, 2012 Ky. LEXIS 175 (2012)
842 S.W.2d 487, 492 (Ky. 1992), overruled on other grounds by Calloway Cnty. Sheriff’s Dep’t v. Woodall, 607 S.W.3d 557 (Ky. 2020). 12 Gingerich v. Commonwealth, 382 S.W.3d 835, 845
The opinion
COMBS, Justice,
concurring.
I concur in the majority opinion unre- _ servedly. By writing separately, I intend to detract nothing from this historic monument to freedom, liberty, and equality — the birthright of every citizen of Kentucky. In form and substance, the majority opinion is of a stature entirely commensurate with its noble purpose.
Of necessity, we choose today between competing principles of political, jurisprudential, and (some would say) moral philosophy. Sworn to uphold and protect the Constitution of Kentucky, we seven aspire to perform that high duty, each to the best of his ability, each confessing to finite wisdom.
It is essential to understand what the Constitution is, and what it is not. It is the instrument by which the people created a government and invested it with certain powers, directed to a specific end. The Constitution does not create any rights of, or grant any rights to, the people. It merely recognizes their primordial rights, and constructs a government as a means of protecting and preserving them. In the Bill of Rights, purposed to recognize and establish “the great and essential principles of liberty and free government,” the very first section of the Constitution acknowledges that, by virtue of their species and nothing more, all persons are free and equal, and possess certain natural, inherent, inalienable rights. These include, but are not limited to, the enjoyment of life and liberty, the pursuit of happiness, and freedom of expression. In Section 5, freedom of conscience is recognized as another of these ascendant principles.
The purpose of the government born of the Constitution is to protect these individual liberties, not to take them away. The first sentence of the Constitution, the Preamble, declares its object to secure civil, political, and religious liberties. The Constitution does not establish an omnipotent government which may, condescending, dispense selected rights to the citizen. The legislative power vested in the General Assembly through Section 29 is not absolute power, but a power of government (Section 27), a government instituted to ensure the “peace, safety, and happiness” of the people, in whom all power inheres (Section 4). Ordained as the jealous guardian of individual freedom, government wields legitimate power only in execution of that function. Its authority to interfere with one’s liberty derives solely from its duty to preserve the liberty of another. Where one seeks happiness in private, removed from others (indeed unknown to others, absent prying), and where the conduct is not relational to the rights of another, state interference is per se overweening, arbitrary, and unconstitutional.
It may be asked whether a majority, believing its own happiness will be enhanced by another’s conformity, may not *503 enforce its moral code upon all. The answer is that, first, morality is an individual, personal — one might say, private — matter of conscience, and dwells inviolate within the fortress of Section 5: “No human authority shall, in any case whatever, control or interfere with rights of conscience.” Second, the Constitution promotes no particular morality, however popular. Indeed, the New World having been sought out by those fleeing state and/or majoritarian persecution, our systems of government are predicated upon such imperatives as that recognized in Kentucky Constitution Section 2: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Third, morality is a matter of values. Insofar as it comprises a moral code, the Constitution embraces— yea, embodies — the immutable values of individual freedom, liberty, and equality.
Those who decry today’s result are quick to note the absence of the word “privacy” from the Constitution. To them I say, first, that Section 1, in enumerating certain inherent rights, does not purport to be exclusive. Its words are that those may be reckoned among every person’s inalienable rights. The Constitution also omits mention of one’s right to play checkers, to smile or frown, to rise or rest, to eat or fast, to look at a king. I have no doubt, as a citizen or as a jurist, that these rights exist. (Likely, neither is this list exhaustive.) Second, the right to privacy is a necessary concomitant to general natural freedom and freedom of conscience, as well as to the rights to enjoy life and liberty and to seek and pursue happiness. Third, given the nature, the purpose, the promise of our Constitution, and its institution of a government charged as the conservator of individual freedom, I suggest that the appropriate question is not “Whence comes the right to privacy?” but rather, “Whence comes the right to deny it?”
STEPHENS, C.J., joins in this concurring opinion.