# Petition — New York v. Onofre

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 987

## Text

‘Olfice-Supreme Court, U.S.

80 - -1634@. FILED

VAR 30 1984

No 8 eons eo
& “CLE RK

In The

Supreme Court of the United States
OCTOBER TERM, 1980

THE STATE OF NEW YORK,

Petitioner,
against

RONALD ONOFRE,
Respondent.

On Petition for a Writ of Certiorari
to the New York State Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

RICHARD A. HENNESSY, JR.
District Attorney
Onondaga County Civic Center
Syracuse, New York 13202

JOHN A. CIRANDO, ESQ.
Chief Assistant District Attorney
of Counsel

~~

0
QUESTION PRESENTED

Does the holding of the New York State Court of Appeals that
the statute proscribing CONSENSUAL SODOMY (New York
Penal Law §130.38) specifically violates the equal protection
clause of the United States Constitution, as well as respondent’s
constitutional right to privacy (i.e., his freedom of personal
conduct), justify this Court’s review on writ of certiorari?

u

TABLE OF CONTENTS

Question Presented... ... . o:s0:+sss0 4 50a see
Table of Authorities... . . 2055050555 sean
Opinions Below . ......is0+005 50am eee
Swriedictgn «wok ev vc ce a ean eye

Constitutional Provistom ..... .««<ssssn0e eee

ARGUMENT

POINT I — The writ of certiorari should be granted due
to the federal constitutional significance of the Court of
Appeals’ decision... .... 054400500455 eee

CONCLUSION — For the foregoing reasons, it is
respectfully submitted that the petition for certiorari
should be granted... 0... ssc0see00e see haseee

APPENDICES

APPENDIX A — Memorandum Decision of Onondaga
County Court ........s0000050008 6 4 05 alee

APPENDIX B — Opinion of the New York State
Supreme Court, Appellate Division, Fourth Depart-
MONE 0. cece seer eee eds es 05s aes

APPENDIX C — Opinion of the New York State Court of
Appeals... ccc cc cn s esse a 6s 6st

APPENDIX D — Order of the New York State Court of
Appeals (Remittitur). .......cs 00020505 e es ee

APPENDIX E — Order of the New York State Court of
Appeals (Denying Reargument)..................

14

A-l

mw

TABLE OF AUTHORITIES

Cases: Page
Canfield v. State, 506 P.2d 987 (Okl. Crim.), app. dism. 414

USS. 991 (1973), reh. den. 414 U.S. 1188 (1974)........ 6
Carey v. Population Services International, 431 U.S. 678

NE ee at 6 4 ie VA Sh eo he ee ee oe ee ROS 7.9
Commonwealth v. Bonadio, Pa. , 415 A.2d 47

ocho gence a eae oie KE OORT R ee ORN 5

Doe v. Commonwealth’s Attorney, 403 F.Supp. 1199 (E.D.
Va. 1975), aff'd 425 U.S. 901, reh. den. 425 U.S. 985

CREE. 654 ot ORE eee ee SAO 6,8, 9, 14
Eisenstadt v. Baird, 405 U.S. 438 (1972)... ........05. 7
Frontiero v. Richardson, 411 U.S. 677 (1973) .......... 11, 12
Graham v. Ricivirdson, 403 U.S. 365 (1971)... 2.0.0... 12

Griswold v. Connecticut, 381 U.S. 479 (1965) ..........
ee ee a ee Ra ee eres 7,10, 11, 12, 13

Jacobellis v. Ohio, 378 U.S. 184 (1964)... .......000.. 13
J.B.K., Inc. v. Caron, 600 F.2d 710 (8th Cir. 1979)....... 9
Kelly v. State, 45 Md. App. 212, 412 A.2d 1274(1980).... 6,9
Layne & Bowler Corp. v. Western Well Works, Inc., 261
a A en os ek 5
Loving v. Virginia, 388 U.S. 1 (1967) ...........0005. 7, ia

Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973) aff'd on
other gnds. 539 F.2d 349 (4th Cir.), cert. den. sub nom.

Lovisi v. Zahradnick, 429 U.S. 977 (1976)... 2... eee. 7,9, 10
Meyer v. Nebraska, 262 U.S. 390 (1923) .............. 7
Oyama v. California, 332 U.S. 633 (1948)... ......008. 12

Palko v. Connecticut, 302 U.S. 319 (1987). ............ )

Ww
Page
Paris Adult Theatre I v. Slayton, 413 U.S. 49, reh. den.

414 US. 881 (1973), 419 U.S. 887 (1974) ........... 9, 13,14
Pierce v. Society of Sisters, 268 U.S. 510 (1925). ........ 7
Prince v. Massachusetts, 321 U.S. 158 (1944) .......... 7
Raphael v. Hogan, 305 F. Supp. 749 (S.D.N.Y. 1969)... .. 10
Bp WOE, GG Uy TE UTOEER 6c svc cei ese wecees 11,12
Hine ¥. Frame, GIO Ue. LEB G aes 5 nc ove cree ee es: 7,8,9
San Antonio Independent School District v. Rodriquez,

411 US. 1, reh. den. 411 U.S. 959 (1973) ............ 11,13
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535

a hae eee ee wee hs cree eee 7
Stanley v. Georgia, 394 U.S. 557 (1969)... 6... ee. 8,9

State v. Callaway, 25 Ariz. App. 267, 542 P.2d 1147 (1975),
rev'd sub nom. State v. Bateman, 113 Ariz. 107, 547

P.2d 6 (en banc), cert. den. 429 U.S. 864 (1976)... .... 6
State v. Elliott, 88 N.M. 187 (Ct. App.), 539 P.2d 207

(1975), rev’d 89 N.M. 305, 551 P.2d 1352 (1976) ....... 6
State v. Enslin, 25 N.C. App. 662, 214 S.E. 2d 318 (1975),

cert. den. 425 U.S. 903, reh. den. 425 U.S. 985 (1976). . . 6

State v. Hill, 166 N.J. Super. 224 (Law Div.), 399 A.2d 667
(1978), rev'd on other gnds. 170 N.J. Super 485 (App.
Div), 406 A.2a 1SBACSTO. ... cc clec eee cces ees

State v. Pilcher, 242 N.W.2d 348 (Iowa 1976)..........
State v. Santos, R.I.____, 413 A.2d 58 (1980). .....

aS eo mS oO

State v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977). .....

Page
Statutes:
I I ns ew cc ner ec vecccsscsces 2
New York Executive Law Sec. 71 ..............044. 3
New York Penal Law:
SS ee 2
a 3, 4, 5,8, 11, 14
a Ahan aicne bees ee vcace 10
ee ae a ccd aa pil S-h-0 4.6% eae ee ees 10
Ge sass cc elk pha Cn dese eee sees 10
Legislative Materials:
New York Legislative Annual (1965)................ 13
New York Legislative Record and Index:
ss Sees cee asad cecsecess 13
re 13
nt a 13
Miscellaneous:
Rule 17, Rules of the Supreme Court................ 5

Davis, Self Inflicted Injuries of the Anus, Rectum and
Perineum, American Journal of Proctology, Vol. 20,
OO 12

Marino & Mancini, Anal Eroticism, Surgical Clinics of
North America, Vol. 58, No. 3 (June, 1978). ......... 12

Rivera, Our Straight-Laced Judges: The Legal Position of
Homosexual Persons in the United States, 30 Hastings

EES Ee
Sohn, Weinstein & Gonchar, Social Injuries of the
Rectum, American Journal of Surgery, Vol. 134
ee wk oie bbs ose ese

Worsaae & Wanscher, Report of a Case, Acta Der-
matovener (Stockholm), Vol. 58 (1978) .............

Comment, The Constitutionality of Sodomy Statutes, 45
ey pave adds ps vesveees

Page

12

12

In The

Supreme Court of the United States
OCTOBER TERM, 1980

No. 80-

THE STATE OF NEW YORK,

Petitioner,
against

RONALD ONOFRE,
Respondent.

On Petition for a Writ of Certiorari
to the New York State Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The Onondaga County Court’s Memorandum Decision, dated
September 1, 1978, which upheld the constitutionality of the
statute in question has not been published (Appendix A). The
New York State Supreme Court, Appellate Division, Fourth
Department, reversed petitioner’s judgment of conviction on
January 24, 1980 (72 A.D.2d 268) (Appendix B). The New York
State Court of Appeals affirmed the order of the Appellate
Division on December 18, 1980, holding that the statute
specifically violated respondent’s rights as protected by the
United States Constitution (51 N.Y.2d 476) (Appendix C).”

"The instant action was consolidated before the New York State Court of
Appeals with People of the State of New York v. Peoples and Goss and
People of the State of New York v. Sweat. It is requested that this Court
consolidate the instant petition with that filed by the District Attorney of
Erie County in those two actions.

JURISDICTION

Petitioner seeks a writ of certiorari to the New York State
Court of Appeals with regard to its decision of December 18,
1980, affirming the order of the New York State Supreme Court,
Appellate Division, Fourth Department.

The writ of certiorari is sought, pursuant to Title 28 U.S.C.
§1257(3), because the Court of Appeals held that the state statute
in question specifically violated the equal protection clause of
the United States Constitution and respondent’s constitutional
right of privacy.

CONSTITUTIONAL PROVISION

UNITED STATES CONSTITUTION
(Amendment XIV, §1)

Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal pro-
tection of the laws.

STATUTES

NEW YORK PENAL LAW §130.00(2)
(Sex Offenses; definitions of terms):

2. “Deviate sexual intercourse” means sexual conduct
between persons not married to each other consisting of
contact between the penis and the anus, the mouth and
the penis, or the mouth and the vulva.

L. 1965, c. 1030

NEW YORK PENAL LAW §130.38
(Consensual! Sodomy):

A person is guilty of consensual sodomy when he
engages in deviate sexual intercourse with another
person.

Consensual sodomy is a class B misdemeanor.
Added L. 1965, c. 1038 §2.

STATEMENT OF THE CASE

Respondent was indicted on April 29, 1977, for SODOMY IN
THE FIRST DEGREE, SEXUAL ABUSE IN THE FIRST
DEGREE, CONSENSUAL SODOMY and SEXUAL ABUSE IN
THE THIRD DEGREE.

On October 4, 1978, the charges of SODOMY IN THE FIRST
DEGREE, SEXUAL ABUSE IN THE FIRST DEGREE, and
SEXUAL ABUSE IN THE THIRD DEGREE were dismissed by
the Onondaga County Court, the victim having indicated that he
had willingly engaged in oral and anal sexual contact with
respondent. Respondent’s motion to dismiss the charge of
CONSENSUAL SCDOMY, on the ground that New York Penal
Law §130.38 violated the equal protection provisions of the state
and federal constitutions, as well as his right to privacy, was
denied (see Appendix A).

The Attorney General of New York State had been notified of
the proceedings pursuant to Executive Law §71, but he indicated

that he would rely on petitioner herein throughout the entire
proceedings.

On October 18, 1978, the date of the crime charged in the
indictment was amended, respondent admitted committing
CONSENSUAL SODOMY, and he was sentenced to serve a one-
year conditional discharge.

On October 28, 1978, respondent filed a notice of appeal and on
his direct appeal challenged his judgment of conviction on the
grounds that New York Penal Law §130.38 violated the First
Amendment of the United States Constitution, as well as his
constitutional rights to privacy, due process and equal protec-
tion. By order entered on January 24, 1980, the New York State
Supreme Court, Appellate Division, Fourth Department,
reversed respondent's judgment of conviction and dismissed the
indictment (72 A.D.2d 268) (Appendix B).

On March 13, 1980, Associate Judge Domenick L. Gabrielli of
the New York State Court of Appeals granted petitioner leave to
appeal (49 N.Y.2d 895). On December 18, 1980, over the dissent of
two judges, that court affirmed the decision of the Appellate
Division specifically because the statute violated respondent's
right to privacy and equal protection as guaranteed by the
United States Constitution (51 N.Y.2d 476) (Appendix C).

By order entered February 10, 1981, the Court of Appeals
denied respondent's motion for reargument (___. N.Y.2d ___)
(Appendix FE).

FACTS

On February 23, 1977, respondent was arrested and charged
with SODOMY IN THE FIRST DEGREE, pursuant to a felony
complaint alleging that he had forcibly engaged in deviate sexual
intercourse with one Russell Evans (12-14).* As a result of the
anal intercourse, Evans, a 17-year-old retarded youth, was forced
to see!: medical attention (13-15, 59-05).

Respondent claimed to have met Evans as a result of his ac-
tivities as a purported “minister” of the “Universal Life
Church,” and that all of their acts together were the result of
their mutual love for each other (15-33).

* Page references are to the Record on Appeal in the New York State Court of
Appeals.

Respondent was subsequently indicted (34-35). However, when
Evans indicated that his participation in the activities in
question was voluntary, as illustrated in certain photographs
supplied by the respondent, the Onondaga County Court
dismissed all charges except that of CONSENSUAL SODOMY
(48-65).

Respondent later admitted committing CONSENSUAL
SODOMY and was sentenced to serve a one-year conditional
discharge (66-7 1).

ARGUMENT

POINT I

The writ of certiorari should be granted due to the federal
constitutional significance of the Court of Appeals’ decision.

Although a writ of certiorari is not a matter of right, it is
respectfully submitted that the validity of New York Penal Law
§130.38 under the United States Constitution is an issue of
“special and important” significance which warrants this
Court’s review (Rule 17, Rules of the Supreme Court). Indeed, a
decision by the New York State Court of Appeals that the
statute in question specifically violates only the federal consti-
tution is clearly a matter for this Court’s attention and is of con-
siderable importance to the general public, as distinguished from
the individual parties involved (see Layne & Bowler Corp. v.
Western Well Works, Inc., 261 U.S. 387, 393 (1923)).

The federal constitutional questions at issue herein, and
the sharp division among the state courts as to the validity of
similar statutes proscribing consensual sodomy, clearly dem-
onstrate the need for this Court’s guidance on the subject (see
Commonwealth v. Bonadio, ___ Pa. ___, 415 A2d 47 (1980);
State v. Hill, 166 N.J. Super. 224,___ (Law Div.), 399 A.2d 667,
671-672 (1978), rev'd on other gnds. 170 N.J. Super. 485 (App.

Div.), 406 A.2d 1334 (1979); State v. Saunders, 75 N.J. 200, 381
A.2d 333 (1977); State v. Pilcher, 242 N.W.2d 348 (lowa, 1976);
compare Kelly v. State, 45 Md. App. 212, ___, 412 A.2d 1274,
1277 (1980); Doe v. Commonwealth's Attorney, 403 F.Supp. 1199
(E.D. Va. 1975), aff'd 425 U.S. 901, reh. den. 425 U.S. 985 (1976);
State v. Enslin, 25 N.C. App. 662, 214 S.E.2d 318 (1975), cert. den.
425 U.S. 903, reh. den. 425 U.S. 985 (1976); Canfield v. State, 506
P.2d 987 (Okl. Crim.), app. dism. 414 U.S. 991 (1973), reh. den. 414
U.S. 1138 (1974); see also State v. Callaway, 25 Ariz. App. 267,
542 P.2d 1147 (1975), rev'd sub nom. State v. Bateman, 113 Ariz.
107, 547 P.2d 6 (en banc), cert. den. 429 U.S. 864 (1976); State v.
Elliott, 88 N.M. 187 (Ct. App.), 539 P.2d 207 (1975), rev'd 89 N.M.
305, 551 P.2d 1352 (1976).

Furthermore, statutes proscribing consensual sodomy have
been enacted by a substantial number of state legislatures (see
Rivera, Our Straight-Laced Judges: The Legal Position of
Homosexual Persons in the United States, 30 Hastings L.J. 799.
949-950). The uneven treatment which such statutes have
received in the state courts can only serve to encourage consti-
tutional attack, resulting in inconsistent interpretations of such
statutes under the United States Constitution until this Court
finally decides the matter.

In Doe (425 U.S. at 901) this Court summarily affirmed a lower
court decision upholding the constitutionality of a statute
similar to that at issue in the case at bar. However, three
members of the Court would have noted probable jurisdiction
and would have set the case for oral argument (425 U.S. at 901).
It is respectfully submitted that the increasing need for this
Court’s guidance in this area continues unabated.

Hence, petitioner seeks this Court’s review on writ of cer-
tiorari.

... a8 to the right of privacy

This Court has long recognized that there are certain decisions
which are personal and which an individual must be permitted
to make without unjustified governmental intrusiun (see Carey
v. Population Services International, 431 U.S. 678, 684-685 (1977)
[contraception]; Roe v. Wade, 410 U.S. 113, 152 (1973) [abortion];
Eisenstadt v. Baird, 405 U.S. 438, 453-454 (1972) [contraception];
Loving v. Virginia, 388 U.S. 1, 12 (1967) [marriage]; Griswold v.
Connecticut, 381 U.S. 479, 485-486 (1965) [contraception]). The
freedom to make such decisions is expressed as the “right to
privacy”, and transcends the notion that “privacy” refers only to
the ability to act behind closed doors (Lovisi v. Slayton, 363
F.Supp. 620, 625-626 (E.D. Va. 1973), aff'd on other gnds 539 F.2d
349 (4th Cir.), cert. den. sub. nom. Lovisi v. Zahradnick, 429 US.
977 (1976)).

In Griswold (supra) this Court looked to the “penumbras” of
the specific guarantees of the Bill of Rights to create a “zone of
privacy” that extended to protect from governmental interfer-
ence the marital relationship and the personal decision of contra-
ception.

This right of personal choice in matters of contraception was
expanded beyond the marital relationship in Eisenstadt (supra)
and, most recently, in Carey (supra). In Roe (supra at 153) this
Court held that the right to privacy also protected “a woman’s
decision whether or not to terminate her pregnancy ” The right
to privacy, as this Court pointed out in Carey (supra at 685), has
been further held to shield personal decisions relating to
marriage (Loving, supra); procreation (Skinner v. Oklahoma ex
rel. Williamson, 316 U.S. 535, 541-542 (1942)); family relation-
ships (Prince v. Massachusetts, 321 U.S. 158, 166 (1944)); and
child rearing and education (Pierce v. Society of Sisters, 268 U.S.
510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

It is respectfully submitted, however, that this Court has never
extended the right to privacy to embrace acts of consensual
sodomy, even within the privacy of the home, and has gone so far
as to let stand the validity of a state statute prohibiting private
acts of consensual sodomy (Doe, supra). Contrary to the interpre-
tation given tc % by the New York Court of Appeals (51 N.Y.2d
at 493; Appendix C, A36-A37), the District Court in Doe would
appear to have based its decision solely upon the con-
stitutionality of the statute in question, rather than on any issue
of standing or lack of justiciable controversy (see Appellant's
Jurisdictional Statement in Doe, pp. 6-11).

Respondent’s activities in the case at bar, made even more
reprehensible by the mental deficiencies of the complainant (13-
15), fell squarely within the provisions of New York Penal Law
§130.38. Such actions cannot be said to be protected by a right to
privacy which has heretofore been granted only to matters of
marital intimacy, procreative choice and familial decisions,
rather than solely to sexual gratification.

The privacy right ...cannot be said to be absolute. In
fact, it is not clear to us that the claim .. . that one has an
unlimited right to do with one’s body as one pleases bears
a close relationship to the right of privacy previously
articulated in the Court’s decisions. The Court has
refused to recognize an unlimited right of this
kind .. . (Roe, supra at 154).

The New York State Court of Appeals’ reliance (51 N.Y.2d at
487; Appendix C, A29-A30) on this Court’s opinion in Stanley v.
Georgia (394 U.S. 557 (1969)) as expanding the right to privacy to
include private acts of consensual sodomy is inapposite. Stanley
(supra at 564) involved more than mere private acts committed
within the confines of one’s home: the invasion in Stanley im-
plicated not only the right to privacy, but more importantly, it
violated fundamental First Amendment rights long cherished by
the Court and not at issue in the case at bar. “Our holding in the
present case turns upon the Georgia statute’s infringement of

fundamental liberties protected by the First and Fourteenth
Amendments” (Stanley, supra at 568 n.11).

The absence of such countervailing First Amendment consider-
ations is conspicuous in the case at bar, and the activities herein
are clearly outside of the protection of the constitutional right to
privacy established by this Court. Although the outer limits of
that right have not been enunciated by the Court, “[t]he decision
whether or not to beget or bear a child is at the very heart of this
cluster of constitutionally protected choices” (Carey, supra at
684-685; see also State v. Santos, R.I. ___, 413 A.2d 58, 67-
68 (1980)). Indeed, this Court has expressly refused to extend the
right of privacy to private consensual sexual behavior among
adults (Carey, supra at 688 n.5), and has let stand the constitu-
tionality of a Virginia statute proscribing consensual sodomy by
its summary affirmance in Doe (supra).

Furthermore, “only personal rights that can be deemed
‘fundamental’ or ‘implicit in the concept of ordered
liberty’. ..are included in this guarantee of personal privacy”
(Roe, supra at 152, quoting Palko v. Connecticut, 302 U.S. 319,
325 (1937)). Sodomy is a crime of “ancient vintage,” prohibited as
far back as biblical times (Kelly, supra at 1277; see also Doe,
supra at 1202-1203; Comment, The Constitutionality of Sodomy
Statutes, 45 Fordham L.R. 553, 578), and it is difficult to believe
“that the decision of an unmarried adult to engage in private
consensual sexual activities is of such a fundamental nature or is
so ‘implicit in the concept of ordered liberty’ to warrant its
inclusion in the guarantee of personal privacy [citations
omitted]” (Santos, supra at 68; see also Paris Adult Theatre I v.
Slayton, 413 U.S. 49, 65-66, reh. den. 414 U.S. 881 (1973), 419 U.S.
887 (1974); J.B.K.. Ine. v. Caron, 600 F.2d 710 (8th Cir. 1979);
Lovisi v. Slayton, 539 F.2d 349, 351; ef, 51 N.Y.2d at 486-489;
Appendix C, A29-A32). It is respectfully submitted that the
decision to commit sodomy cannot be elevated to the level of
those decisions involving procreative choice, marriage, family

10

choice, and education, and cannot realistically lay claim to
constitutional protection any more than can decisions to commit
adultery (New York Penal Law §255.17), incest (New York Penal
Law §255.25), or bigamy (New York Penal Law §255.15).

Furthermore, respondent’s claim that his activities with the
complainant were cloaked with the right to privacy overlooks the
fact that respondent removed his actions from the realm of
private consensual conduct by photographing his activities and
by removing those photographs from his home (59-65) (Lovisi,

supra).

It is respectfully submitted that the New York Court of
Appeals failed to adequately consider the implications of these
photographs (see 51 N.Y.2d at 485 n.2; Appendix C, A27 n.2).
Once respondent caused them to be removed from the privacy of
his home, his acts may no longer be said to have been private;
and that privacy is essential to respondent’s constitutional claim
(see Lovisi, 363 F.Supp. 620, 626). Indeed, can it seriously be
contended that the use of contraceptives in Griswold (supra)
would be similarly protected if such “use” should occur in Times
Square rather than in the “sacred precincts of the marital
bedroom”? (Id. at 485). Acts of a private nature which are made
public relinquish any claim that they might have had to the
right of privacy (see Lovisi, supra; Raphael v. Hogan, 305
F.Supp. 749, 755 n.18 (S.D.N.Y. 1969)).

In Lovisi (363 F.Supp. 620, 623), the defendants also took pho-
tographs of themselves engaging in acts of sodomy. The District
Court specifically held that the Lovisis waived their right to
privacy by taking photographs of their activities, and then, as in
the case at bar (59-65), by failing to deny access to those
photographs to other persons who had not participated therein.
“In order for their sexual relations to be constitutionally
protected, the Lovisis had the responsibility of ensuring that the
seclusion surrounding their acts was preserved” (363 F.Supp. at
627; see 539 F.2d 349, 352 (Addendum)). The mere photographing
of those acts and their availability to a non-participant, even

4

11

within the home was sufficient to relinquish any claim to
privacy, despite the fact that the photographs which were
initially made public did not even involve sodomy (363 F.Supp.
620, 623, 627).

In the case at bar, defense counsel repeatedly emphasized the
existence of the photographs, one of which depicted an act of oral
sodomy and which respondent freely removed from his home and
volunteered for inspection by the People, to support the claim
that the activities were consensual (59-65).

As such, it is respectfully submitted that respondent waived
any claim that he might have asserted to the constitutional
protection of the right to privacy. Furthermore, given the limits
which this Court has placed on the extent of that right, such acts
of sodomy may be clearly seen to be outside of its ambit. The case
at bar does not deal with the marital right or any related right
of procreation or family choice (see Griswold, supra at 486).
Rather, it involves activities which have been traditionally anti-
thetical to societal norms and which cannot be deemed “funda-
mental” by any stretch of the imagination. Such activities are
clearly outside the scope of the constitutional right to privacy.

... as to equal protection

The instant statute (New York Penal Law §130.38) dis-
criminates between married and unmarried individuals on its
face. However, in order to uphold its validity only a rational

basis need be shown for the exclusion of married persons from its
prohibition (see Reed v. Reed, 404 US. 71, 76 (1971).

This Court has established that a statute will be strictly
scrutinized only if it involves one of the narrowly defined
suspect classifications (see Frontiero v. Richardson, 411 U.S. 677,
682 (1973)), or when it infringes upon a fundamental right (San
Antonio Independent School District v. Rodriguez, 411 US. 1, 16-
17, reh. den. 411 U.S. 959 (1973).

12

Suspect classifications have been based on race (Loving, supra
at 10-11), alienage (Graham v. Richardson, 403 U.S. 365, 371-372
(1971)), nationality (Graham, supra at 372; Oyama v. California,
332 U.S. 633, 644-646 (1948)), and sex (Frontiero, supra).
However, “this Court has consistently recognized that the Four-
teenth Amendment does not deny to States the power to treat
different classes of persons in different ways [citations omitted]”
(Reed, supra at 75). Since unmarried individuals do not form a
suspect classification, and since, as has been shown (supra), no
fundamental right is restricted by the instant statute, the differ-
entiation within the statute need only be rationally related to a
justifiable legislative aim (Reed, supra at 76).

Contrary to the holding of the Court of Appeals (51 N.Y.2d at
489-491; Appendix C, A31-A34), there has been clear evidence of
physical harm resulting from penetration of the anus with the
penis, an act of sodomy to which respondent admitted and which
in fact caused the victim to seek medical attention for his in-
juries (13, 59-65). Such activity may result in an anal ulcer or
fissure, as well as “extensive changes in the anus and rectum
both by friction and as a result of infection” since the anal canal
was not evolved for such activity (Marino & Mancini, Anal
PHroticism, Surg. Clin. No. Am., Vol. 58, No. 3 (June, 1978); Davis,
Self Inflicted Injuries of the Anus, Rectum and Perineum, Am. J.
Proct., Vol. 20, No. 3 (June, 1969); see also Sohn, Weinstein &
Gonchar, Social Injuries of the Rectum, Am. J. Surg., Vol. 134
(November, 1977)). :

Indeed, another of respondent’s activities, fellatio, has also
been known to cause injury (Worsaae & Wanscher, Report of a
Case, Acta Dermatovener (Stockholm), Vol 58 (1978)). Clearly,
such injuries, or even their potential, are substantial enough to
justify the regulation imposed by the instant statute.

In exempting married persons from its operation, however, the
New York Legislature was cognizant of the fundamental rights
of marital privacy enunciated by this Court in Griswold (supra),
and the statute was carefully worded in order that such rights

13

would not be viclated. The statute does not differentiate between
married and unmarried persons because the latter are more
susceptible to harm from such activities. Rather, it bends in the
face of the clear right to marital privacy, differentiating on the
basis of the varying privacy interests in the relationships of
married and unmarried persons, and protecting the “sacred
precincts of the marital bedrooms” from governmental intrusion
(Griswold, supra at 485-486).

Moreover, “{als Mr. Chief Justice Warren stated, there is a
‘right of the Nation and of the States to maintain a decent
society” (Paris Adult Theatre I, supra at 59-60, quoting
Jacobellis v. Ohio, 378 U.S. 184, 199 (1964); see also The Constitu-
tionality of Sodomy Statutes, supra at 581).

The New York Legislature has chosen to adopt its statute pro-
scribing consensual sodomy. It was a moral judgment “based
largely upon the premise that deletion thereof might ostensibly
be construed as legislative approval of deviate conduct” (51
N.Y.2d at 489, quoting N.Y. Legis. Annual, pp. 51-52 (1965);
Appendix C, A32). Indeed, the New York State Legislature has
consistently rejected efforts to repeal its consensual sodomy
statute (See, e.g., A.3647 N.Y. Legis. Record and Index (1981);
S.4672, S.994, $.956, A.1201 N.Y. Legis. Record and Index (1980); -
S.2078, A.1659 N.Y. Legis. Record and Index (1979); see also N.Y.
Legis. Annual, pp. 530-531 (Governor’s Memoranda) (1965)).

Such a statute is clearly perceived to be conducive to a “decent
society,” and even if “less drastic” measures to achieve the legis-
lative aims are available, they are not mandated. “Only where
state action impinges on the exercise of fundamental constitu-
tional rights or liberties must it be found to have chosen the least
restrictive alternative’ (San Antonic Independent School
District, supra at 51).

Although there may be little empirical evidence as to anti-
social behavior or moral decay fostered by such a statute, the

14

New York Legislature could quite reasonably have determined
that such a connection does or might exist (see Paris Adult
Theatre I, supra at 60-61). “It is not for us to resolve empirical
uncertainties underlying state legislation, save in the excep-
tional case where that legislation plainly impinges upon rights
protected by the Constitution itself” (/d. at 60; see also Doe,
supra at 1202).

Thus, it is respectfully submitted that the differentiation
within New York Penal Law §130.38 is a rationally based
distinction which satisfies the requirements of the Equal
Protection Clause. Since the constitutional right of privacy is not
implicated in the New York Penal Law’s proscription of con-
sensual sodomy, and since no other fundamental right or suspect
classification is involved, such a rational basis is sufficient to
support the statute against constitutional attack.

CONCLUSION

For the foregoing reasons, it is respectfully subraitted that
the petition for certiorari should be granted.

Respectfully submitted,

RICHARD A. HENNESSY, JR.
District Attorney
Onondaga County Civic Center
Syracuse, New York York 13202

JOHN A. CIRANDO, ESQ.
Chief Assistant District Attorney
of Counsel

DATED: March 23, 1981

Appendices

A-1

APPENDIX A
MEMORANDUM DECISION OF ONONDAGA COUNTY
COURT

STATE OF NEW YORK
COUNTY COURT COUNTY OF ONONDAGA

THE PEOPLE OF THE STATE OF NEW YORK
Vs.
RONALD ONOFRE
Indictment No. 77-181-1

APPEARANCES:

RICHARD A. HENNESSY, JR., ESQ., District Attorney of
Onondaga County; DOREEN A. SIMMONS, ESQ., of Counsel,
Attorney for the People

BONNIE STRUNK, ESQ., Attorney for the Defendant
GALE, J.
MEMORANDUM/DECISION

The above-named defendant has been charged, by Indictment No.
77-181-1, with SODOMY IN THE FIRST DEGREE, SEXUAL
ABUSE IN THE FIRST DEGREE, CONSENSUAL SODOMY,
and SEXUAL ABUSE IN THE THIRD DEGREE.

Subsequent to the arrest and indictment of the defendant, the
victim recanted his statement as to the forcible nature of the
sexual acts involved herein and acknowledged that all of the
sexual relations upon which this Indictment was predicated
were, in fact, voluntary. In light of this recantation, the People
have indicated that the First, Second, and Fourth Counts of this
Indictment should be dismissed. The Court agrees and the
charges of SODOMY IN THE FIRST DEGREE, SEXUAL

a

A-2

APPENDIX A
Memorandum Decision of Onondaga County Court

ABUSE IN THE FIRST DEGREE and SEXUAL ABUSE IN
THE THIRD DEGREE are hereby dismissed.

The defendant moved to have the Third Count of this In-
dictment by which he is charged with CONSENSUAL SODOMY,
in violation of the Penal Law §130.38, dismissed on the ground
that the aforementioned statute is unconstitutional, both on its
face and as applied in this case.

The defendant’s argument is two-fold: he argues, first, that the
statute is unconstitutional in that it violates the equal
protection provisions of the State and Federal! Constitutions and;
second, that the statute as applied in this case is an un-
constitutional infringement of his right to privacy.

It is the position of the People that Penal Law §130.38 is
constitutional as a proper exercise of the State’s power to
promote the health, safety, general welfare, and morals of its
inhabitants based on the Legislature’s reasonable conclusion
that acts of sodomy are both a moral outrage and a menace to
the health and safety of society.

Pursuant to Executive Law §71, the Court ordered the
defendant to serve notice of his motion on the Attorney General
of the State of New York. Such notice was given and the At-
torney General has notified the Court that he will not appear in
this proceeding.

Penal Law §130.38 provides that:

“A person is guilty of consensual sodomy when he
engages in deviate sexual intercourse with another

”

“Deviate sexual intercourse” is defined as:

“".. sexual conduct between persons not married to each
other consisting of contact between the penis and the
anus, the mouth and penis, or the mouth and the vulva.”

A-3

APPENDIX A
Memorandum Decision of Onondaga County Court

We are here dealing with the question of whether or not the
consensual sodomy section, enumerated above, violates those
Amendments of the United States Constitution by virtue of
which an individual is deemed to have a right of privacy which
serves as protection against all governmental invasions of the
sanctity of a man’s home and the privacies of life. Can the
Constitution be interpreted to exclude so-called “unnatural” sex
acts from any interference on the part of the State which con-
cededly has the right and the obligation to protect the morals of

its people?

A review of the few New York cases which have dealt with the
issue presented herein shows a recent trend on the part of the
courts towards holding Penal Law §130.38 unconstitutional as
violative of equal protection or the right to privacy or some
combination of the two.

The first reported case dealing with the constitutionality of
the New York consensual sodomy law was Caphart v. Hogan,
(305 F. Supp. 749,) SDNY decided in 1969. The case involved
actors in a production of Che! arrested for committing sodomitic
acts during the course of a performance. It was the defendant's
position that the First Amendment protected acts of deviate
sexual intercourse performed in public between unmarried
consenting adults if such conduct was part of a dramatic work.
The situation presented in the case at bar is clearly
distinguishable because of the private nature of the sexual acts
herein. The court disallowed the married/unmarried equal
protection argument in noting that all public acts of sodomy, no
matter by whom committed, would be criminal conduct in
violation of the public lewdness law.

In the case of Jn re Labady, the court in its decision noted, in
commenting upon the consensual sodomy statute:

A-4

APPENDIX A
Memorandum Decision of Onondaga County Court

“The statute does not specifically extend to consensual
sodomy, performed in private. At common law, a lewd,
obscene, or indecent act included only open or public
behavior, Rittenour v. District of Columbia, 163 A 2d 558,
559... Grisham v. State 10 Teen. (2 Yerger) 589, 594-597
(1831). We have found no prosecution for private
homosexual acts under §130.38. One New York court has
stated in dictum that the private conduct of an adinitted
homosexual was not violative of any criminal statute. In
re Petition of Olga Schmidt, 56 Misc 2d 89, 92 ... Many
state statutes prohibiting homosexual conduct explicitly
require openness or publicity.

Note, Private Consensual Homosexual Behavior: The
Crime and the Enforcement, 70 Yale L.J. 623, 635.”

Many of the cases cited by the defense counsel indicate a
growing propensity on the part of the United States Supreme
Court to decriminalize “unnatural acts” and to reenforce and
strengthen those Amendments of the Constitution granting the
citizen his right to privacy.

For a Trial Court to attempt to analyze the thinking of the
United States Supreme Court at any time in history is difficult.
However, the actions of the present “Burger court” appear to
strengthen the acts of the state. As the Wall Street Journal
recently stated: (Wednesday, August 23, 1978, “A Judicial War
on the Press?” by Jonathan Kwitny):

“In recent months, the federal courts have ruled that the
government may (a) examine the records of all telephone
calls into and out of a newspaper office (or TV station,
magazine or book publisher) without telling the news-
paper; (b) obtain a secret search warrant to burst into
newspaper offices, examining anything that looks in-
teresting; and (c) throw a reporter into jail for faili: z to
round up and turn over every note he ever wrote to
himself, every scrap of paper that ever passed through his

A-5

APPENDIX A
Memorandum Decision of Onondaga County Court

hands, and by implication every thought he ever had
about a given subject.”
in the cases of People v. Rice and Mehr, 80 Mise 2d 511, the
District Court of Suffolk County in 1975 held Penal Law §130.38
unconstitutional as violative of the equal protection clauses of
U.S. and N.Y. constitutions. Rice was charged with violating the
consensual sodomy law in that he committed consensual sodomy
in a public place. (With regard to Mehr, the information did not
indicate where the acts complained of allegedly took place). The
court questioned whether there was a reasonable basis for the
distinction which makes certain conduct between unmarried
consenting adults a criminal offense when married people are
excluded from the prohibition as are unmarried people who
engage in certain other types of sexual behavior. The court said:

“The intent to be gleaned from the very words of the
statute is the intent to prohibit unmarried persons, even
though consenting, from engaging in some form of sexual
conduct which has been termed sodomy. Married people
are not prohibited from engaging in such conduct by the
very definition, single or unmarried persons, who engage
in sexual intercourse in the ‘ordinary meaning’ (Penal
Law §130.00, subd. 1) are not committing a crime. What
we are then faced with is a distinction, for which we can
find no rational basis between married people, and
unmarried who engage in sodomy and between un-
married people who engage in ‘ordinary sexual inter-
course’ and those unmarried people who engage in
‘deviate sexual intercourse’ or sodomy, keeping in mind
in all cases the parties are consenting.”

The court went on to remark that it could not see what over-
riding or compelling state interest was protected by the con-
sensual sodomy law:

“We cannot see how the activities of two consenting
adults threatens or causes any, nonetheless substantial,

A-6

APPENDIX A
Memorandum Decision of Onondaga County Court

harm to either individual or public interests. Nor can we
see any threat to public safety ... If acts of sodomy so
outrage society that such acts should be criminalized then
they should be so as to all who commit them. If sodomous
acts have serious moral and health consequences so that
they must be proscribed then they, again, should be so for
all people, not just unmarried. The married adult, as well
as the unmarried, has a right to be so protected. Or if the
State’s interest lies in protecting the morals of unmarried
persons, then all sexual conduct between two unmarried
persons should be prohibited not just sodomous conduct.
If the real purpose is to prevent homosexuality, the
legitimacy of such purpose not being here considered,
then, the statute should proscribe conduct between
unmarried persons of the same sex, not any such persons.
Lastly, if the State’s interest is to protect the public from
sexual acts done in public then the statute should so state.
Clearly none of these purposes is indicated. The statute
seeks to prevent a certain group of people from doing
certain acts and this court can find no basis for this
classification, ...”

The court found also that the statute invades the right to
privacy: “If, as has been held in Griswold v. Connecticut, 381 US.
479, inquiry into or regulations of a married person's sexual
conduct is an invasion of the right to privacy, then inquiry into
or regulation of a single person’s sexual conduct is equally
violative of the right to privacy.”

The court’s decision was reversed on appeal. (People v. Rice &
Mehr, 87 Misc.2d 257, Supreme Court, Appellate Term 2 Dept.
1976. The appellate court preserved the Griswold, supra, em-
phasis on the marital relationship, noting that the New York
statute built in the exceptions mandated by Griswold, supra, by
excepting married couples entirely. The court pointed out that
the defendant failed to cite a case which recognizes “... a
fundamental right to commit consensual sodomy” and says that

A-7

APPENDIX A
Memorandum Decision of Onondaga County Court

Fisenstadt v. Baird (405 U.S. 438) “... does not require any
extension of the right of privacy to unmarried couples regarding
the issue of sodomy.”

While the Court of Appeals affirmed the Appellate Term’s
reversal of the dismissal of the informations, it did so on the
basis of their being an insufficient record on which to decide such
an important constitutional question. (41 NY2d 1018)

The court stated:

“In both of these cases novel and difficult constitutional
questions in a field, largely unsettled, come to the court
without a trial record and solely on the informations
filed. Intermeshed are questions of conduct traditionally
treated as criminal and yet, when committed privately
and circumspectly, suggestive of an unwarranted inter-
ference by the State with the lately recognized and in-
choate ‘penumbral’ right of privacy (see e.g. Griswold v.
Connecticut, 381 US 479, 484-485; Stanley v. Georgia, 394
US 557, 564-568). The solution to these questions should
not be determined in the bare outline of a criminal in-
formation, especially since divergencies of view, properly,
may turn, among other things, on the different degrees of
interference with privacy, or better, freedom of conduct,
which may be tolerated in an organized society without
infringing on a society’s right to require conformance to
standards which it believes essential to its survival or
character.” (Emphasis supplied)

Although the court upheld the informations, it was without
prejudice to a review of the issues on the merits in the event of
conviction. In light of the above, this case can hardly be regarded
as a strong statement in support of the constitutionality of the
consensual sodomy statute.

For the reasons indicated above we feel that the language of
the Appellate Term in the cases of People v. Rice & Mehr

A8

APPENDIX A
Memorandum Decision of Onondaga Countu Court

satisfies the requirements laid down initially by Grisawold,
supra, and the claim of unconstitutionality on the ground that it
violates the equal protection provision of the State and Federal
Constitutions is without merit.

A careful reading of the language of the Court of Appeals
would indicate that the crux of the problem is whether or not
consensual sodomy in the privacy of one’s home infringes on
society’s right to require conformance to standards which it
believes is essential to its survival or character.

This Court does not believe that it should usurp the function of
the New York State Legislature. In the practice commentary to
§130.38 we find the following language:

“Each year since 1967, one or more bills have been in-
troduced in the Legislature proposing repeal of this
crime. As of 1974, these efforts have not been successful.”
Presumably the same situation still continues or the Court
would now be faced with this problem.

The latest word from the Courts of New York State is reflected
in the Appellate Term decision and the Court of Appeals decision
in the case of People v. Mehr, supra. There appears to this Court
to be a thread running through their decisions to leave the
consensual sodomy statute to Legislative action. The Appellate
Term emphasized:

“No case has been reported or cited by the defendant
which would recognize a fundamental right to commit
consensual sodomy.”

This is different from the right to bear children. (Kisenstadt and
Griswold, above).

While the Court of Appeals stresved the lack of a trial record;
they also emphasized the difficulty of weighing freedom of
individual conduct against the right of society to require con-

A-9

APPENDIX A
Memorandum Decision of Onondaga County Court

formance to standards which the State believes essential to its
survival or character.

We feel that the State’s right and power to regulate sexual
conduct in order to promote the health, safety and morals of its
people should be determined by their elected representatives. If
the Court of Appeals had some temerity in deciding this issue,
this Court is not about to embark on a determination of issues
which it feels belongs to the people’s representatives.

Today we live in a permissive society. If such a statute as
§130.38 should be wiped off the books and consensual sodomy
decriminalized, now is the time for the Legislature to do it.

For the reasons indicated this Court is not going to attempt to
write legislation upon such a sensitive subject, but would rather
leave it up to the Legislature where the solution to the problem
really belongs. Under the circumstances, the defendant’s motion
is denied.

Submit Order in accordance with this Memorandum.

ls) ORMAND N. GALE
County Court Judge

DATED: Syracuse, New York
September Ist, 1978.

[Reprinted from original without correction]

A-10

APPENDIX B
OPINION OF THE NEW YORK STATE
SUPREME COURT, APPELLATE DIVISION,
FOURTH DEPARTMENT

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v RONALD ONOFRE, Appellant.

Fourth Department, January 24, 1980

SUMMARY

Appeal from a judgment of the Onondaga County Court
(ORMAND N. GALE, J.), rendered October 18, 1978, convicting
defendant, upon his plea of guilty, of consensual sodomy.

HEADNOTES

Crimes — Appeal

1. Defendant, who pleaded guilty to the crime of consensual sodomy in
violation of section 130.38 of the Penal Law after the trial court denied his
motion to dismiss the charge on the ground that the statute is unconstitu-
tional on its face, can appeal that conviction by again challenging the constitu-
tionality of the statute.

Crimes — Sodomy

2. Section 130.38 of the Penal Law is an unconstitutional exercise of State
power insofar as it prohibits voluntary sexual conduct between consenting
adults in private inasmuch as the State's interest in regulating such conduct is
insufficient to prevent the statute from running afoul of the constitutional
right to privacy, the equal protection and due process clauses of the Fourteenth
Amendment of the United States Constitution, and the due process clause of
section 6 article I of the New York Constitution.

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES*

CLS, Penal Law §130.38; CLS, NY Const Art I §6
70 AM JUR 2d, Sodomy §§2, 18, 26

A-11

APPENDIX B
Opinion of the New York State Supreme Court,
Appellate Division, Fourth Department

ANNOTATION REFERENCE

Consent as defense in prosecution for sodomy. 58 ALR3d
636.

"Hy the Publisher's Editorial Staff

APPEARANCES OF COUNSEL

Bonnie Strunk (Margot Karle of counsel), for appellant.

Richard A. Hennessy, Jr., District Attorney (Gail Uebelhoer of
counsel), for respondent.

William H. Gardner, amicus curiae.
OPINION OF THE COURT

DOERR, J.

(1, 2] Defendant was charged with the crime of consensual
sodomy in violation of section 130.38 of the Penal Law.* He
moved to dismiss the charge, alleging that the statute is un-
constitutional on its face. After a careful review of the law on
the subject, County Court denied the motion and defendant
entered a plea of guilty to consensual sodomy in violation of the
statute. It is from this conviction that defendant appeals, again
challenging the constitutionality of the statute. In this posture
the case is properly before this court for review (see People v
Rice, 41 NY2d 1018). We reverse.

There is no fact in dispute. Defendant by his own affidavit and
his testimony before the Grand Jury, after waiving immunity,

“Other charges of sodomy in the first degree (Penal Law, §130.50, subd 1),
sexual abuse in the first degree (Penal Law, §130.65, subd 1), and sexual
abuse in the third degree (Penal Law, §130.55) were dismissed when com-
plainant recanted his Grand Jury testimony relating to forcible compulsion
and lack of consent.

A-12

APPENDIX B
Opinion of the New York State Supreme Court,
Appellate Division, Fourth Department

admitted engaging in the proscribed sexual conduct over a
period of time with another male in the privacy of his home. The
relationship, admitted by both participants, was entered into by
mutual consent.

Section 130.38 of the Penal Law provides that “A person is
guilty of consensual sodomy when he engages in deviate sexual
intercourse with another person.” Deviate sexual intercourse is
defined as “sexual conduct between persons not married to each
other consisting of contact between the penis and the anus, the
mouth and penis, or the mouth and the vulva” (Penal Law,
§130.00, subd 2). Thus, while the statute prohibits homosexual
conduct, it also proscribes certain heterosexual conduct, but the
latter is proscribed only between persons not married to each
other. To that extent it is not the conduct which is condemned
but rather the lack of jural relationship which the parties bear to
each other.

The defendant argues that such penal prohibition is an im-
proper exercise of governmental power, violative of his funda-
mental right to privacy, and that the due process clause requires
strict judicial scrutiny of the governmental interest in such a
statute. He further asserts that the distinction made in the
statute between married and unmarried individuals is im-
permissible under the equal protection clause.

The People urge that we are bound by Doe v Commonwealth's
Attorney for City of Richmond (403 F Supp 1199, affd without
opn 425 US 901), which upheld the constitutionality of a Virginia
penal law prohibiting consensual sodomy. That case, however,
involved an action for a declaratory judgment and a permanent
injunction from prosecution under the Virginia statute on the
basis of possible police interference or enforcement. In the case
at bar we have a defendant attacking the constitutionality of a

A-13

APPENDIX B
Opinion of the New York State Supreme Court,
Appellate Division, Fourth Department

penal statute under which he stands convicted of a crime.
Furthermore, in the light of Cooper v Morin (49 NY2d 69), Doe v
Commonwealth's Attorney (supra) is not binding upon our court
in any event. We therefore address the subject.

Prior to 1965, privacy was not regarded as an independent
constitutional right but was rather an interest given limited
protection by certain constitutional provisions, e.g., the Fourth
and Fifth Amendments. In Griswold v Connecticut (381 US 479)
the Supreme Court, based upon a “zone of privacy” relationship,
struck down a statute forbidding the use of contraceptives by a
married couple. The right of privacy was again recognized and
extended in Hisenstadt v Baird (405 US 438), the court holding
that if the distribution of contraceptives to married persons
cannot be prohibited, a ban on their distribution to unmarried
persons is equally impermissible. In doing so, it stated that, “If
the right of privacy means anything, it is the right of the in-
dividual, married or single, to be free from unwarranted govern-
mental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child. See
Stanley v. Georgia, 394 U.S. 557 (1969). See also Skinner v.
Oklahoma, 316 U.S. 535 (1942); Jacobson v. Massachusetts, 197
US. 11, 29 (1905).” (Eisenstadt v Baird, supra, pp 453-454;
emphasis added.) Subsequently this right of privacy was held to
be a liberty guaranteed by due process of law in upholding the
right of an unmarried woman to terminate her pregnancy (Roe v
Wade, 410 US 113).

Thus it is seen that the concept of personal freedom includes a
broad and unclassified group of values and activities related
generally to individual repose, sanctuary and autonomy and the
individual's right to develop his personal existence in the
manner he or she sees fit. Personal sexual conduct is a fun-

A-14

APPENDIX B
Opinion of the New York State Supreme Court,
Appellate Division, Fourth Department

damental right, protected by the right to privacy because of the
transcendental importance of sex to the human condition, the
intimacy of the conduct, and its relationship to a person’s right
to control his or her own body (see, generally, Wilkinson &
White, Constitutional Protection for Personal Lifestyles, 62
Cornell L Rev 563). The right is broad enough to include sexual
acts between nonmarried persons (see Roe v Wade, supra;
Exsenstadt v Baird, supra) and intimate consensual homosexual
conduct (see Tribe, American Constitutional Law, p 946).

It has been said that “privacy in the conventional sense (being
left alone without anyone observing) is a generally accepted pre-
requisite to human sexual intercourse and the protection of
sexual activity seems to be an important aspect of the consti-
tutional right to privacy cases” (Richards, Unnatural Acts and
the Constitutional Right to Privacy: A Moral Theory, 45 Ford-
ham L Rev 1281, 1303). The right to be free from unwarranted
governmental intrusions into one’s privacy is fundamental
(Stanley v Georgia, 394 US 557). The privacy right, however, is
not absolute (Roe v Wade, 410 US 1138, 154-155, supra.). To the
extent that certain conduct has the potential for working harm,
the State may restrict it.

What then is the State interest in regulating private, con-
sensual sexual behavior between adults, and in particular,
deviate sexual behavior in this context between homosexuals
and unmarried heterosexuals? If the interest of the State is the
general promotion of morality, we are then required to accept on
faith the State’s moral judgment. Equally important in the
community of man would seem to be some degree of toleration of
ideas and moral choices with which one disagrees. The State may
have a paternalistic interest in protecting an individual from
self-inflicted harm or self-degrading experiences. This again pre-

A-15

APPENDIX B
Opinion of the New York State Supreme Court,
Appellate Division, Fourth Department

supposes the validity of the State’s judgment, and outright
proscription of certain activity can easily become discriminatory
governmental tyranny. Curtailing activity which offends the
public is a legitimate State interest but the standard to be
applied in such a case is the effect that behavior might have on a
reasonable person, not the most sensitive member of the com-
munity. Conduct which is carried on in an atmosphere of privacy
between two parties by mutual agreement has little likelihood of
offending a public not embarked on eavesdropping. A State
interest based upon the prevention of physical violence and
disorder fails for the same reason. Sexual conduct with an
unwilling partner or one incapable of consent is punishable by
other statutes.

Preserving marriage and the nuclear family is a legitimate
State interest, as attested to by statutes which forbid adultery,
even though it involves consensual acts between adults per-
formed in private. There are those who argue that homosexual
conduct should be forbidden even when conducted in private by
consenting adults because it is destructive of traditional
principles of family and marriage. However, there is no empir-
ical evidence to support that view. In an era of ever expanding
sexual freedom and rising divorce rates, there has been no in-
dication that heterosexual marriage as an _ institution is
generally less attractive. Divorced parties continue to remarry
other partners. Further, there is no indication that the state of
remaining unmarried has undermined the heterosexual family.
Indeed, one legitimate form of being unmarried, religious
celibacy, certainly not a concept of recent origin, has not made
the heterosexual family less stable. “In general, there is surely
no constitutional or moral duty to marry or, more generally, to
procreate; such an idea violates everything that the consti-

A-16

APPENDIX B
Opinion of the New York State Supreme Court,
Appellate Division, Fourth Department

tutional right to privacy was designed to protect, namely,
autonomy in deciding whether and how to love” (Richards,
Unnatural Acts and the Constitutional Right to Privacy: A
Moral Theory, 45 Fordham L Rev 1281, 1344).

[2] None of the stated reasons suggested above rises to the level
necessary to support the questioned legislation. Failing this, the
statute runs afoul of the constitutional right to privacy and the
Fourteenth Amendment’s equal protection clause as well as that
amendment’s due process clause and in addition the due process
clause of section 6 article I of the New York State Constitution.
“(A] governmental purpose to control or prevent activities consti-
tutionally subject to state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade
the area of protected freedoms” (VAACP v Alabama, 377 US 288,
307).

Moreover, if homosexual conduct is thus protected, hetero-
sexual conduct between unmarried consenting adults in private
is protected for the same reasons and in addition for the reason
that the differentiation made between married and unmarried
persons has no rational basis and is violative not only of due
process but also the equal protection clause of the Constitution.

For these reasons, section 130.38 of the Penal Law is an un-
constitutional exercise of State power insofar as it prohibits
voluntary sexual conduct engaged in between consenting adults
in private.

The defendant’s conviction should, therefore, be reversed and
the indictment dismissed.

-CARDAMONE, SIMONS and WITMER, JJ., concur; DILLON,
P.J., not participating.

Judgment reversed, on the law, and indictment dismissed.
{Reprinted from original without correction]

A-17

APPENDIX C
OPINION OF THE NEW YORK STATE
COURT OF APPEALS

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v.
RONALD ONOFRE, Respondent.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.
CONDE J. PEOPLES, III, and PHILIP S. GOSS, Appellants.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.
MARY SWEAT, Appellant.

Argued October 8, 1980; decided December 18, 1980
SUMMARY

Appeal, in the first above-entitled action, by permission of an
Associate Judge of the Court of Appeals, from an order of the
Appellate Division of the Supreme Court in the Fourth Judicial
Department, entered January 24, 1980, which (1) reversed, on the
law, a judgment of the Onondaga County Court (Ormand N.
Gale, J.), convicting defendant of consensual sodomy, and (2)
dismissed the indictment.

Appeal, in the second above-entitled action, by permission of
an Associate Judge of the Court of Appeals, from an order of the
Erie County Court (Penny M. Wolfgang, J.), entered October 9,
1979, which affirmed a judgment of the City Court of the City of
Buffalo (Herbert R. Johnston, Jr., J.), rendered upon verdicts
convicting defendants of consensual sodomy.

Appeal, in the third above-entitled action, by permission of an
Associate Judge of the Court of Appeals, from an order of the
Erie County Court (Penny M. Wolfgang, J.), entered October 9,
1979, which affirmed a judgment of the City Court of the City of
Buffalo (Carmelo A. Parlato, J.), convicting defendant of con-
sensual sodomy.

Defendants were each convicted of consensual sodomy under
section 130.38 of the Penal Law, defined as deviate sexual in-

A-18

APPENDIX C
Opinion of the New York State Court of Appeals

tercourse between persons not married to each other (Penal Law,
§130.00, subd 2). On appeal, the Appellate Division reversed in
the case of defendant Onofre and dismissed the indictment,
concluding that section 130.38 was unconstitutional, and the
Erie County Court affirmed the convictions of defendants
Peoples, Goss and Sweat, rejecting claims of the un-
constitutionality of section 130.38.

The Court of Appeals (1) affirmed the order of the Appellate
Division, and (2) reversed the orders of the Erie County Court
and dismissed the informations, holding, in an opinion by Judge
Jones, that section 130.38 of the Penal Law violates defendants’
constitutional rights to privacy and equal protection of the law
because it is broad enough to reach noncommercial, cloistered
personal sexual conduct of consenting adults and because it
permits the proscribed conduct between persons married to each
other without sanction. —

People v Onofre, 72 AD2d 268, affirmed.

HEADNOTE

Crimes — Sodomy — Consensual Sodomy

Section 130.38 of the Penal Law, which criminalizes consensual! sodomy or
deviate sexual intercourse between persons not married to each other as
defined in subdivision 2 of section 130.00 of the Penal Law, is violative of
rights protected by the United States Constitution because the statute is
broad enough to reach noncommercial, cloistered personal sexual conduct be-
tween consenting adults and because it permits the proscribed conduct be-
tween persons married to each other without sanction; section 130.38
violates the rights of defendants convicted thereunder to privacy and to
equal protection of the laws.

POINTS OF COUNSEL

Richard A. Hennessy, Jr., Distrct Attorney (Gail N.
Uebelhoer and John A. Cirando of counsel), for appellant in the
first above-entitled action. I. The court below erroneously ex-
tended the Griswold right to privacy to encompass sodomy.

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APPENDIX C
Opinion of the New York State Court of Appeals

(Cooper v Morin, 49 NY2d 69; Doe v Commonwealth's Attorney
for City of Richmond, 403 F Supp 1199, 425 US 901; Griswold v
Connecticut, 381 US 479; Lovisi v Slayton, 539 F2d 349, cert den
sub nom. Lovisi v Zahradnick, Penitentiary Supt., 429 US 977:
Raphael v Hogan, 305 F Supp 749; Matter of Dora P., 68 AD2d
719; People v Rice, 80 Misc 2d 511, 87 Misc 2d 257, 41 NY2d 1018:
People v Johnson, 77 Misc 2d 889, 97 Misc 2d 905; Hisenstadt v
Baird, 405 US 438; Carey v Population Servs., Int., 431 US 678.)
II. The court below erroneously held that marriage violates equal
protection. (Frontiero v Richardson, 411 US 677: San Antonio
School Dist. v Rodriquez, 411 US 1; Village of Belle Terre v
Boraas, 416 US 1; Griswold v Connecticut, 381 US 479: Frances
B. v Mark B., 78 Misc 2d 112; Anonymous v Anonymous, 67 Misc
2d 982; Mirizio v Mirizio, 242 NY 74; People v Reilly, 85 Mise 2d
702; People v. Johnson, 77 Misc 2d 889, 97 Misc 2d 905; Raphael v
Hogan, 305 F Supp 749.) III. The court below erroneously held
that proscriptions against sodomy were an improper exercise of
State power. (People v Dozier, 72 AD2d 478; People v Rice, 41
NY2d 1018; People v Broadie, 37 NY2d 100; Paris Adult Theatre
Iv Slaton, 413 US 49; People v Portanova, 56 AD2d 265; People v
Billi, 90 Misc 2d 568.) IV. The statute is constitutional. (Cooper v
Morin, 49 NY2d 69; Matter of Dora P., 68 AD2d 719; Raphael v
Hogan, 305 F Supp 749; People v Johnson, 77 Mise 2d 889. 97
Misc 2d 905; People v Dozier, 72 AD2d 478; People v Broadie, 37
NY2d 100; People v Portanova, 56 AD2d 265; People v Griswold,
213 NY 92; Matter of Trustees of State Univ. of N.Y. v Edelman,
76 Misc 2d 820.)

Bonnie Strunk for respondent in the first aboveentitled ac-
tion. I. Section 130.38 of the New York Penal Law is an un-
constitutional infringement upon repondent’s fundamental right
to privacy. (Olmstead v United States, 277 US 438; Boyd v
United States, 116 US 616; Union Pacific Ry. Co. v Botsford, 141
US 250; Meyer v Nebraska, 262 US 390; Allgeyer v Louisiana,
165 US 578; Pierce v Society of Sisters, 268 US 510: Prince v

A-20

APPENDIX C
Opinion of the New York State Court of Appeals

Massachusetts, 321 US 158; Skinner v Oklahoma, 316 US 535;
Poe v Ullman, 367 US 497; Griswold v Connecticut, 381 US 479.)
II. Respondent’s right to privacy is protected by the New York
State Constitution. (Oregon v Hass, 420 US 714; Cooper v
California, 386 US 58; Sibron v New York, 392 US 40; Cooper v
Morin, 49 NY2d 69; People v Barber, 289 NY 378; Sharrock v
Dell Buick-Cadillac, 45 NY2d 152; Ives v South Buffalo Ry. Co.,
201 NY 271; Matter of Jacobs, 98 NY 98; Bertholf v O'Reilly, 74
NY 509; People v Leyra, 302 NY 353.) III. Section 130.38 of the
Penal Law violates respondent’s right to equal protection under
the New York State and United States Constitutions. (Matter of
Patricia A., 31 NY2d 83; New York State Soc. of Med. Masseurs
v City of New York, 74 Mise 2d 573; Stanley v Georgia, 394 US
557; Eisenstadt v Baird, 405 US 438; Railway Express v New
York, 336 US 106; People v Rice, 80 Mise 2d 511; Lovisi v
Slayton, 363 F Supp 620; Matter of P., 92 Misc 2d 62, revd sub
nom. Matter of Dora P., 68 AD2d 719; McGowan v Maryland, 366
US 420; United States Dept. of Agric. v Moreno, 413 US 528.) IV.
Section 130.38 of the Penal Law violates the due process
guarantee of the New York and United States Constitutions.
(Matter of Towa v Regan, 54 AD2d 46, 40 NY2d 837; Barbier v
Connolly, 118 US 27; Patterson v Carey, 41 NY2d 714; Hisen-
stadt v Baird, 405 US 438; Baker v Carr, 369 US 186.) V. The
consensual sodomy statute does not serve any reasonable or
legitimate State interest. (People v Dozier, 72 AD2d 478; People
v Billi, 90 Mise 2d 568; People v Bunis, 9 NY2d 1; Stanley v
Georgia, 394 US 557; Goldberg v Kelly, 397 US 254; Hannah v
Larche, 363 US 420.) VI. Section 130.38 violates the establish-
ment clause of the First Amendment and section 3 of article I of
the New York State Constitution. (Engel v Vitale, 370 US 421;
Committee for Public Educ. v Nyquist, 413 US 756; Epperson v
Arkansas, 393 US 97; Everson v Board of Educ., 330 US 1;
Abington School Dist. v Schempp, 374 US 203; McGowan v
Maryland, 366 US 420; McCollum v Board of Educ., 333 US 203;

A-21

APPENDIX C
Opinion of the New York State Court of Appeals

Serbian Orthodox Diocese v Milivojevich, 426 US 696.) VII.
Respondent’s challenge to the constitutionality of New York’s
consensual sodomy law raises substantial Federal questions that
were neither resolved or precluded by the Supreme Court’s
summary affirmance of Doe v Commonwealth’s Attorney. (Doe v
Commonwealth's Attorney for City of Richmond, 403 F Supp
1199, 425 US 901; Hicks v Miranda, 422 US 332; Gibson v
Berryhill, 411 US 564; Edelman v Jordan, 415 US 651; Fusari v
Steinberg, 419 US 379; Dillenburg v Kramer, 469 F2d 1222:
Jordan v Gilligan, 500 F2d 701, 421 US 991; Fisher v Secretary of
U.S. Dept. of Health, Educ. & Welfare, 522 F2d 493; Ashwander
v Valley Auth., 297 US 288; Abbot Labs. v Gardner, 387 US 136.)

Bruce V. Bordelon, Shepherd I. Raimi and Jo-Ann H.
Whitehorn for The Special Committee on Sex and Law of the
Association of the Bar of the City of New York, amicus curiae, in
the first above-entitled action. The court below correctly struck
down New York’s consensual sodomy statute as violative of all
citizens’ — heterosexual as well as homosexual — rights of
privacy. (Doe v Commonwealth's Attorney for City of Richmond,
403 F Supp 1199, 425 US 901; Griswold v Connecticut, 381 US
479; Eisenstadt v Baird, 405 US 438; Roe v Wade, 410 US 113;
Carey v Population Servs. Int., 431 US 678; Stanley v Georgia,
397 US 557; Terry v Ohio, 392 US 1; Loving v Virginia, 388 US 1;
Matter of Dora P., 68 AD2d 719; Roberson v Rochester Folding
Box Co., 171 NY 538.)

Barbara Ellen Handschu for National Committee for Sexual
Civil Liberties, amicus curiae in the first above-entitled action. I.
The right of privacy is involved herein both under the Federal
and the State Constitutions. (Central Sav. Bank in City of N.Y. v
City of New York, 280 NY 9; Couper v Morin, 49 NY2d 69; Doe v
Commonwealth's Attorney for City of Richmond, 403 F Supp
1199, 425 US 901; Dorsey v Stuyvesant Town Corp., 299 NY 512:
Fuentes v Shevin, 407 US 67; Fusari v Steinberg, 419 US 379:

A-22

APPENDIX C
Opinion of the New York State Court of Appeals

Griswold v Connecticut, 381 US 479; Mandel v Bradley, 432 US
173; Matter of P., 92 Misc 2d 62, revd sub nom. Matter of Dora P.,
68 AD2d 719.) II. Section 130.38 of the Penal Law is an improper
invasion of the right of privacy. (Jacobellis v Ohio, 378 US 184;
Paris Adult Theater I v Slaton, 413 US 49; People v Onofre, 72
AD2d 268; People v Rice, 41 NY2d 1018; Roe v Wade, 410 US
113; Stanley v Georgia, 394 US 557.)

Thomas B. Stoddard and Steven R. Shapiro for New York Civil
Liberties Union, amicus curiae in the first above-entitled action.
I. This court should explicitly recognize a right to privacy under
the Constitution of the State of New York. (Olmstead v United
States, 277 US 438; Griswold v Connecticut, 381 US 479;
Kisenstadt v Baird, 405 US 438; Roe v Wade, 410 US 113; Carey v
Population Servs. Int., 431 US 678; Spahn v Julian Messner, Inc.,
43 Misc 2d 219, 23 AD2d 216, 18 NY2d 324; Time, Inc. v Hill, 385
US 374; Matter of A & M, 61 AD2d 426; Matter of P., 92 Mise 2d
62, revd sub nom. Matter of Dora P., 68 AD2d 719; Matter of
Fraser v Brown, 203 NY 136.) II. Private sexual activity between
consenting adults should be protected by any right of privacy
recognized under the State Constitution and, on that basis,
section 130.38 of the Penal Law must be struck down. (People v
Rice, 41 NY2d 1018; Katz v United States, 389 US 347; Roe v
Wade, 410 US 113.) III. The right to privacy guaranteed by the
United States Constitution protects private sexual activity be-
tween consenting adults. (Griswold v Connecticut, 381 US 479;
Hisenstadt v Baird, 405 US 438; Skinner v Oklahoma, 316 US
535; Whalen v Roe, 429 US 589; Doe v Commonwealth’s At-
torney for City of Richmond, 403 F Supp 1199, 425 US 901; Carey
v Population Servs. Int., 431 US 678; Stanley v Georgia, 394 US
557.)

Margot Karle and Rosalyn H. Richter for Lambda Legal
Defense & Education Fund, Inc., amicus curae in the first
above-entitled action. I. The court below correctly held section

A-23

APPENDIX C
Opinion of the New York State Court of Appeals

130.38 of the Penal Law is unconstitutional as violative of the
right to privacy. (Carey v Population Servs. Int., 431 US 678;
Cooper v Morin, 49 NY2d 69; Doe v Bolton, 410 US 179; Doe v
Commonwealth's Attorney for City of Richmond, 403 F Supp
1199, 425 US 901; Eisenstadt v Baird, 405 US 438; Griswold v
Connecticut, 381 US 479; Lovisi v Slayton, 539 F2d 349; Pianned
Parenthood of Mo. v Danforth, 428 US 52; Roe v Wade, 410 US
113; Stanley v Georgia, 394 US 557.) II. The court below correctly
held section 130.38 as violative of the equal protection clause.
(Acanfora v Board of Educ., 359 F Supp 843, 491 F2d 498, 419 US
836; Misenstadt v Baird, 405 US 438; Griswold v Connecticut, 381
US 479; Matter of P., 92 Misc 2d 62, revd sub nom. Matter of
Dora P., 68 AD2d 719; Korematsu v United States, 323 US 214;
Maher v Roe, 432 US 464; Mathews v Lucas, 427 US 495;
Memorial Hosp. v Maricopa County, 415 US 250; San Antonio
School Inst. v Rodriguez, 411 US 1.) III. Section 130.38 should be
held unconstitutional under the provisions of the New York
Constitution irrespective of the interpretation under the Federal
Constitution. (Cooper v Morin, 49 NY2d 69; People v Fiedler, 31
NY2d 176; People v Isaacson, 44 NY2d 511; Sharrock v Del
Buick-Cadillac, 45 NY2d 152; Wilkinson v Skinner, 34 NY2d 53.)

William H. Gardner and Dianne Bennett for appellants in the
second and third above-entitled actions. I. The New York con-
sensual sodomy statute is unconstitutional as an impermissible
invasion of privacy. (People v Onofre, 72 AD2d 268; Griswold v
Connecticut, 381 US 479; Stanley v Georgia, 394 US 557;
Eisenstadt v Baird, 405 US 438; Roe v Wade, 410 US 113; Boyd v
United States, 116 US 616; Union Pacific Ry. Co. v Botsford, 141
US 250; Meyer v Nebraska, 262 US 390; Pierce v Society of
Sisters, 268 US 510; Prince v Massachusetts, 321 US 158; Skinner
v Oklahoma, 316 US 535.) II. Appellants have standing to raise
the right of privacy in support of their effort to have their
convictions set aside. (People v Rice, 41 NY2d 1018; Griswold v
Connecticut, 381 US 479; Orr v Orr, 440 US 268.) III. The New

A-24

APPENDIX C
Opinion of the New York State Court of Appeals

York consensual sodomy statute is unconstitutional as a
violation of the rights to the equal protection of the laws of those
who are subject to it, as a result of the distinction made in the
statute between married and unmarried persons. (Griswold v
Connecticut, 381 US 479.) IV. Regardless of the result under the
United States Constitution, this court should hold the statute
unconstitutional under applicable provisions of the New York
Constitution. (Cooper v Morin, 49 NY2d 69; Cohen v Hurley, 366
US 117; Oregon v Hass, 420 US 714; Sharrock v Del Buick-
Cadillac, 45 NY2d 152; People v Isaacson, 44 NY2d 511.) V. The
court should strike down the consensual sodomy statute (Penal
Law, §130.38) in its entirety. (Matter of Lyons v Goldstein, 290
NY 19; People v Finkelstein, 9 NY2d 342; Courtesy Sandwich
Shop v Port of N.Y. Auth., 12 NY2d 379; People v Epton, 19
NY2d 496; People v Kaiser, 21 NY2d 86; Spahn v Julian
Messner, Inc., 21 NY2d 124; Matter of Seitz v Drogheo, 21 NY2d
181; People v Bailey, 21 NY2d 588.) VI. Appellants have
established that their prosecution is the result of discriminatory
enforcement, resulting in a violation of their constitutional right
to equal protection of the laws. (Yick Wo v Hopkins, 118 US 356;
People v Utica Daw’s Drug Co., 16 AD2d 12; People v Friedman,
302 NY 75; People v Goodman, 31 NY2d 262; Matter of 303 West
42nd St. Corp. v Klein, 46 NY2d 686; Matter of Di Maggio v
Brown, 19 NY2d 283; Snowden v Hughes, 321 US 1; Gomillion v
Lightfoot, 364 US 339; Oyler v Boles, 368 US 448; People v
Walker, 14 NY2d 901.)

Edward C. Cosgrove, District Attorney (John J. De Franks of
counsel), for. respondent in the second and third above-entitled
actions. I. The constitutionally recognized right to privacy does
not protect acts of consensual sodomy committed by individuals
in automobiles parked on public streets. (Griswold v Connecticut,
381 US 479; Poe v Ullman, 367 US 497; Stanley v Georgia, 394 US
557; Eisenstadt v Baird, 405 US 438; Roe v Wade, 410 US 113;
Skinner v Oklahoma, 316 US 535; Doe v Commonwealth's At-

A-25

APPENDIX C
Opinion of the New York State Court of Appeals

torney for City of Richmond, 403 F Supp 1199, 425 US 901:
People v Rice, 41 NY2d 1018.) II. Appellants lack standing to
assert a right to privacy in the present cases. III. Section 130.38
of the Penal Law is not violative of the right to equal protection
of the law. (Griswold v Connecticut, 381 US 479; People v Rice, 87
Misc 2d 257; Raphael v Hogan, 305 F Supp 749; Near v Min-
nesota, 283 US 697; Matter of Levy, 38 NY2d 653.) IV. Section
130.38 of the Penal Law should not be held to be un-
constitutional under this State’s Constitution. (Cooper v Morin,
49 NY2d 69.) V. Even if section 130.38 of the Penal Law is found
unconstitutional with respect to private conduct, the statute
should be held to be valid with respect to sodomous acts per-
formed in public areas. VI. The trial court properly denied
appellant’s claim of discriminatory enforcement of the statute in
the absence of any evidence to support such a claim. (Yick Wo v
Hopkins, 118 US 356; People v Utica Daw’s Drug Co., 16 AD2d
12; People v Goodman, 31 NY2d 262.)

OPINION OF THE COURT
JONES, J.

These appeals, argued together, present a common question —
viz., whether the provision of our State’s Penal Law that makes
consensual sodomy a crime is violative of rights protected by the
United States Constitution. We hold that it is.

Defendant Onofre was convicted in County Court of Onondaga
County of violating section 130.38 of the Penal Law (consensual
sodomy) after his admission to having committed acts of deviate
sexual intercourse with a 17-year-old male at defendant’s home.!
The factual admission followed the court’s denial of defendant’s
motion to dismiss the indictment on the ground that the statute

IPefendant’s conviction was not predicated on a guilty plea as inadvertently
recited in the opinion at the Appellate Division.

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APPENDIX C
Opinion of the New York State Court of Appeals

was an invasion of his constitutionality protected right of
privacy and that it denied him equal protection of the laws.

Defendants Peoples and Goss were convicted in Buffalo City
Court of violating the consensual sodomy statute after a jury
trial at which evidence was adduced that they had engaged in an
act of oral sodomy in an automobile parked on a street in the
City of Buffalo in the early morning hours. Defendant Sweat was
convicted of the same crime after a jury trial in the same court
on proof that she had committed a similar act with a male in a
truck parked on a street in a residential area of the city about
1:30 a.m. Ia the cases in Buffalo City Court motions by defen-
dants for dismissals of the informations on the ground that
section 130.38 of the Penal Law is unconstitutional because it
deprives them of equal protection of the law and denies their
right of privacy had been denied.

On appeal by defendants from the judgments of conviction the
Appellate Division, Fourth Department, reversed in the case of
Onofre and dismissed the indictment, concluding that section
130.38 of the Penal Law was unconstitutional and the County
Court of Erie County affirmed the convictions of Peoples, Goss
and Sweat, rejecting the claims of unconstitutionality. The order
of the Appellate Division should be affirmed; those of County
Court should be reversed and the informations dismissed.

The statutes under which these defendants were charged and
convicted provide as follows:

“$130.38 Consensual sodomy.

“A person is guilty of consensual sodomy when he engages in
deviate sexual intercourse with another person.

“$130.00 Sex offenses; definitions of terms.

“The following definitions are applicable to this article:

A-27

APPENDIX C
Opinion of the New York State Court of Appeals

“2. Deviate sexual intercourse means sexual conduct between
persons not married to each other consisting of contact between
the penis and the anus, the mouth and penis, or the mouth and
the vulva.”

Because the statutes are broad enough to reach noncommercial,
cloistered personal sexual conduct of consenting adults and
because it permits the same conduct between persons married to
each other without sanction, we agree with defendants’ con-
tentions that it violates both their right of privacy? and the right

2We are not unmindful that both District Attorneys seek to draw support
from conduct by defendants which they claim either drew the admitted acts
of sodomy into the classification of public, not private, conduct or which
constituted a waiver of the right to assert a right of privacy. Because our
disposition of these appeals rests also on a denial of equal protection rights
we need not pass on the contention by the District Attorney of Erie County
that the acts committed by defendants Peoples, Goss and Sweat, occurring in
vehicles parked on a street or highway at times when traffic might be ex-
pected to be light but which could have been observed by a passerby should
one have happened on the vehicles and looked inside, lost any claim to being
private acts. (On oral argument counsel for the defendants expressly con-
ceded that the acts took place “in public”.) The suggestion by the District
Attorney of Onondaga County that because defendant Onofre presumably
participated in the taking of photographs of himself while engaging in acts
of sodomy and thereafter displayed such photographs to the District At-
torney, he was forclosed from asserting a right of privacy fails to distinguish
between the two aspects of the right as subsequently discussed. Neither the
photographing nor the display of the pictures (which was done only after
charges of sodomy in the first degree and sexual abuse had been laid against
him) affected the secluded nature of the conduct, which was done in
defendant’s own home free from any observation by the public, although,
conceivably, he may thereby have lost any claim to the secrecy aspect of the
right to privacy — an aspect he is not now asserting. No distinction between
these two aspects was observed in Lovisi v Slayton (363 F Supp 620, affd 539
F2d 349, cert den 429 US 977), the decision which appears to have turned on
defendants’ failure to keep the photographs in such a way that their children
would be denied access to them, which the court regarded as a breach of
defendants’ responsibility to ensure that the seclusion surrounding their
acts was preserved (363 F Supp, p 627).

A-28

APPENDIX C
Opinion of the New York State Court of Apneals

to equal protection of the laws guaranteed them by the United
States Constitution.

As to the right of privacy. At the outset it should be noted that
the right addressed in the present context is not, as a literal
reading of the phrase might suggest, the right to maintain
secrecy with respect to one’s affairs or personal behavior; rather,
it is a right of independence in making certain kinds of im-
portant decisions, with a concomitant right to conduct oneself in
accordance with those decisions, undeterred by governmental
restraint — what we referred to in People v Rice (41 NY2d 1018,
1019) as “freedom of conduct.” (See Whalen v Roe, 429 US 589,
598-600.) The right, which has been called “the most com-
prehensive of rights and the right most valued by civilized men”
(Olmstead v United States, 277 US 438, 478 [BRANDEIS, J.,
dissenting]), “has been viewed as emanating from the first
amendment’s guarantee of freedom of association, NAACP v.
Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); and
of speech, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 12438, 22
L.Ed.2d 542 (1969); the fourth amendment, Terry v. Ohio, 392
USS. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); the equal protection
clause of the fourteenth amendment, Loving v. Virginia, 388
US. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); the ninth amend-
ment, Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965) (Goldberg, J., concurring); the penumbras of
the Bill of Rights, id.; and the concept of liberty guaranteed by
the due process clause of the fourteenth amendment, Foe v.
Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)” (Lovisi v
Slayton, 363 F Supp 620, 624, affd 539 F2d 349, cert den 429 US
977, supra).

As recently as 1976 the Supreme Court took pains in Carey v
Population Servs. Int. (431 US 678, 684-685) to observe that “the
outer limits” of the decision-making aspect of the right of
privacy “have not been marked by the Court”, noting however

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APPENDIX C
Opinion of the New York State Court of Appeals

that “among the decisions that an individual may make without
unjustified government interference” are personal decisions
relating to marriage (Loving v Virginia, 388 US 1, 12, supra),
procreation (Skinner v Oklahoma, 316 US 535, 541-542), con-
traception (Exsenstadt v Baird, 405 US 438, 453-454), family
relationships (Prince v Massachusetts, 321 US 158, 166), child
rearing and education (Pierce v Society of Sisters, 268 US 510,
535; Meyer v Nebraska, 262 US 390, 399), and abortion (Roe v
Wade, 410 US 113, 154, supra).

The People are in no disagreement that a fundamental right of
personal decision exists; the divergence of the parties focuses on
what subjects fall within its protection, the People contending
that it extends to only two aspects of sexual behavior — marital
intimacy (by virtue of the Supreme Court’s decision in Griswold
v Connecticut [381 US 479, supra]) and procreative choice (by
reason of Eisenstadt v Baird [405 US 438, supra] and Roe v Wade
[410 US 113, supra]). Such a stance fails however adequately to
take into account the decision in Stanley v Georgia (394 US 557.
supra) and the explication of the right of privacy contained in
the court’s opinion in Hisenstadt. In Stanley the court found
violative of the individual's right to be free from governmental
interference in making important, protected decisions a statute
which made criminal the possession of obscene matter within the
privacy of the defendant’s home. Although the material itself
was entitled to no protection against government proscription
(Roth v United States, 354 US 476) the defendant’s choice to seek
sexual gratification by viewing it and the effectuation of that
choice within the bastion of his home, removed from the public
eye, was held to be blanketed by the constitutional right of
privacy. That the right enunciated in Griswold v Connecticut
(381 US 479, supra) to make decisions with respect to the con-
sequence of sexual encounters and, necessarily, to have such
encounters, was not limited to married couples was made clear
by the language of the court in Hisenstadt v Baird (405 US 438,

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APPENDIX C
Opinion of the New York State Court of Appeals

453, supra): “It is true that in Griswold the right of privacy in
question inhered in the marital relationsuip. Yet the marital
couple is not an independent entity with a mind and heart of its
own, but an association of two individuals each with a separate
intellectual and emotional makeup. If the right of privacy means
anything, it is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear
or beget a child. See Stanley v. Georgia, 394 U.S. 557 (1969).” In a
footnote appended to the Stanley citation the court set out the
following quotation from that decision (p 453, n 10):

“‘{A]lso fundamental is the right to be free, except in very
limited circumstances, from unwanted governmental intrusions
into one’s privacy.

“«“The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness. They recognized
the significance of man’s spiritual nature, of his feelings and of
his intellect. They knew that only a part of the pain, pleasure
and satisfactions of life are to be found in material things. They
sought to protect Americans in their beliefs, their thoughts,
their emotions and their sensations. They conferred, as against
the Government, the right to be let alone — the most com-
prehensive of rights and the right most valued by civilized man.’
Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J.,
dissenting).” ’”

In light of these decisions, protecting under the cloak of the
right of privacy individual decisions as to indulgence in acts of
sexual intimacy by unmarried persons and as to satisfaction of
sexual desires by resort to material condemned as obscene by
community standards when done in a cloistered setting, no
rational basis appears for excluding from the same protection
decisions — such as those made by defendants before us — to
seek sexual gratification from what at least once was commonly

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APPENDIX C
Opinion of the New York State Court of Appeals

regarded as “deviant” conduct,’ so long as the decisions are
voluntarily made by adults in a noncommercial, private setting.
Nor is any such basis supplied by the claims advanced by the
prosecution — that a prohibition against consensual sodomy will
prevent physical harm which might otherwise befall the par-
ticipants, will uphold public morality and will protect the in-
stitution of marriage. Commendable though these objectives
clearly are, there is nothing on which to base a conclusion that
they are achieved by section 130.38 of the Penal Law. No
showing has been made, even in references tendered in the
briefs, that physical injury is a common or even occasional
consequence of the prohibited conduct, and there has been no
demonstration either that this is a danger presently addressed
by the statute or was one apprehended at the time the statutory

3We express no view as to any theological, moral or psychological evaluation
of consensual sodomy. These are aspects of the issue on which informed,
competent authorities and individuals may and do differ. Contrary to the
view expressed by the dissent, although on occasion it does serve such ends,
it is not the function of the Penal] Law in our governmental policy to provide
either a medium for the articulation or the apparatus for the intended
enforcement of moral or theological values. Thus, it has been deemed
irrelevant by the United States Supreme Court that the purchase and use of
contraceptives by unmarried persons would arouse moral indignation
among broad segments of our community or that the viewing of por-
nographic materials even within the privacy of one’s home would not evoke
general approbation (Fisenstadt v Baird, 405 US. 438, supra; Stanley »
Georgia, 394 US 557, supra). We are not unmindful of the sensibilities of
many persons who are deeply persuaded that consensual sodomy is evil and
should be prohibited. That is not the issue before us. The issue before us is
whether, assuming that at least at present it is the will of the community (as
expressed in legislative enactment) to prohibit consensual sodomy, the
Federal Constitution permits recourse to the sanctions of the criminal law
for the achievement of that objective. The community and its members are
entirely free to employ theological teaching, moral suasion, parental advise,
psychological and psychiatric counseling and other noncoercive means to
condemn the practice of consensual sodomy. The narrow question before us
is whether the Federal Constitution permits the use of the criminal law for

that purpose.

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APPENDIX C
Opinion of the New York State Court of Appeals

section was enacted contemporaneously with the adoption of the
new Penal Law in 1965. Indeed, the proposed comprehensive
penal statute submitted to the Legislature by the Temporary
Commission on Revision of the Penal Law and Criminal Code
dropped all proscription against private acts of consensual
sodomy.’ That the enactment of section 130.38 of the Penal Law
was prompted by something other than fear for the physical
safety of participants in consensual sodomy is suggested by the
statement contained in the memorandum prepared by the
chairman of the Temporary Commission: “It would appear that
the Legislature’s decision to restore the consensual sodomy
offense was, as with adultery, based largely upon the premises
that deletion thereof might ostensibly be construed as legislative
approval of deviate conduct” (NY Legis Ann, 1965, pp 51-52).

Any purported justification for the consensual sodomy statute
in terms of upholding public morality is belied by the position
reflected in the Eisenstadt decision in which the court carefully
distinguished between public dissemination of what might have
been considered inimical to public morality and individual
recourse to the same material out of the public arena and in the
sanctum of the private home. There is a distinction between
public and private morality and the private morality of an
individual is not synonymous with nor necessarily will have
effect on what is known as public morality (see State v Saunders,
75 NJ 200, 218-220). So here, the People have failed to
demonstrate how government interference with the practice of
personal choice in matters of intimate sexual behavior out of
view of the public and with no commercial component will serve
to advance the cause of public morality or do anything other

4Notable also is the fact that when the Model Penal Code was adopted by the
American Law Institute a subsection which would have made consensual
sodomy a misdemeanor (§207.5, subd [4]) was consciously omitted (ABA-ALI
Model Penal Code, Proposed Official Draft, §213.2, Status of Section, pp 145-
146; Tent Draft No. 4, pp 93, 276).

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APPENDIX C
Opinion of the New York State Court of Appeals

than restrict individual conduct and impose a concept of private
morality chosen by the State.

Finally, the records and the written and oral arguments of the
District Attorneys as well are devoid of any support for the
statement that a prohibition against consensual sodomy will
promote or protect the institution of marriage, venerable and
worthy as is that estate. Certainly there is no suggestion that the
one is a substitute or alternative for the other nor is any em-
pirical data submitted which demonstrates that marriage is
nothing more than a refuge for persons deprived by legislative
fiat of the option of consensual sodomy outside the marital bond.

In sum, there has been no showing of any threat, either to
participants or the public in general, in consequence of the
voluntary engagement by adults in private, discreet, sodomous
conduct. Absent is the factor of commercialization with the
attendant evils commonly attached to the retailing of sexual
pleasures; absent the elements of force or of involvement of
minors which might constitute compulsion of unwilling par-
ticipants or of those too young to make an informed choice, and
absent too intrusion on the sensibilities of members of the
public, many of whom would be offended by being exposed to the
intimacies of others. Personal feelings of distaste for the conduct
sought to be proscribed by section 130.38 of the Penal Law and
even disapproval by a majority of the populace, if that disap-
proval were to be assumed, may not substitute for the required
demonstration of a valid basis for intrusion by the State in an
area of important personal decision protected under the right of
privacy drawn from the United States Constitution — areas, the
number and definition of which have steadily grown but, as the
Supreme Court has observed, the outer limits of which it has not
yet marked.

The assertion in the dissent that validation of the consensual
sodomy statute is mandated by our recent decision in People v

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APPENDIX C
Opinion of the New York State Court of Appeals

Shepard (50 NY2d 640) proceeds from a misconception of cur
holding in Shepard. In that case we upheld the constitutionality
of the statutory proscription against the possession of
marihuana as applied to possession by an individual in the
privacy of his home, noting the existence of a legitimate con-
troversy with respect to whether marihuana is a dangerous
substance. The concurring opinion assembled the impressive
evidence of the harmfulness which attends the use of marihuana.
On such a record we sustained the right of the Legislature to
reach the substantive conclusion that the use of marihuana was
indeed harmful ard accordingly to impose a criminal
proscription based on that predicate. There is in the present case
no basis for a counterpart to the statement in Shepard that “the
Legislature, following extensive studies and hearings, has
specifically found the drug to be sufficiently harmful to warrant
punishing its possession in an effort to deter its use” (p 646). By
critical contrast neither the People nor the dissent has cited any
authority or evidence for the proposition that the practice of
consensual sodomy in private is harmful either to the par-
ticipants or to society in general; indeed, the dissent’s appeal is
only to the historical, conventional characterization which
attached to the practice of sodomy.° It surely does not follow
that, because it is constitutionally permissible to enter the
privacy of an individual's home to regulate conduct justifiably
found to be harmful to him, the Legislature may also intrude on
such privacy to regulate individual conduct where no basis has
been shown for concluding that the conduct is harmful.

As to the denial of defendant's right to equal protection.
Section 130.38 of the Penal Law on its face discriminates be-

‘Twenty-two States have now decriminalized consensual sodomy between
adults in private (Rivera, Our Straight-Laced Judges: The Legal Position of
Homosexual! Persons in the United States, 30 Hastings LJ 799, 950-951; NJ
Stats Ann, §2C:98-2).

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APPENDIX C
Opinion of the New York State Court of Appeals

tween married and unmarried persons, making criminal when
done by the latter what is innocent when done by the former.
With that distinction drawn, we look to see whether there is, as
a minimum, “some ground of difference that rationally explains
the different treatment accorded married and unmarried
persons” under the statute (Hisenstadt v Baird, 405 US 438, 447,
supra).® In our view, none has been demonstrated or identified
by the People in any of the cases before us. In fact, the only
justifications suggested are a societal interest in protecting and
nurturing the institution of marriage and what are termed
“rights accorded married persons”. As has been indicated,
however, no showing has been made as to how, or even that, the
statute banning consensual sodomy between persons not
married to each other preserves or fosters marriage. Nor is there
any suggestion how consensual sodomy relates to rights accorded
married persons; certainly it is not evident how it adversely
affects any such rights. Thus, even if it be assumed that the
objectives tendered by the prosecution are legitimate matters of
public concern, no relationship — much less rational relationshi p
— between those objectives and the proscription of section 130.38
of the Penal Law is manifested. The statute therefore must fall
as violative of the right to equal protection enjoyed by persons
not married to each other.

Little more need be said to dispose of the contention made by
the District Attorneys that the statute is a valid exercise of the
police power vested in the State, which power, it is asserted, is

6If we are correct in the view earlier expressed in this opinion that section
130.38 of the Penal Law infringes on defendants’ right of privacy which is a
fundamental right, then, as observed, in Kisenstadt, the statutory
classification “would have to be not merely rationally related to a valid
public purpose but necessary to the achievement of a compelling state in-
terest” (405 US, p 447, n 7). As was so in Eisenstadt, however, we do not need
to measure the statute by that test inasmuch as it fails to satisfy even the
more lenient rational basis standard.

=

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APPENDIX C
Opinion of the New York State Court of Appeals

authorized for the prevention of harm or for the preservation of
public morality. No substantial prospect of harm from con-
sensual sodomy nor any threat to public — as opposed to private
— morality has been shown.

Finally, we do not plow new ground in the result we reach
today. Most recently, the Supreme Court of Pennsylvania, for
some of the same reasons that underlie our decision, has reached
a similar conclusion even in a case in which the defendants were
charged with commission of deviant acts of sexual conduct with
members of the audience at performances in a public theatre for
which an admission fee had been charged (Commonwealth v
Bonadno, Pa 415 A2d 47 [Pa)). Also consistent with the
result we reach are the decisions by the Iowa Supreme Court in
State v Pilcher (242 NW2d 348 [Iowa] and by the New Jersey
Superior Court in State v Ciuffini (164 NJ Super 145), relying on
the earlier case of State v Saunders (75 NJ 200, supra) in which
its Supreme Court had invalidated as contrary to the consti-
tutionally protected right of privacy a statute making for-
nication a criminal offense. Nor is any contrary result compelled
by Doe v Commonwealth's Attorney for City of Richmond (403 F
Supp 1199, affd 425 US 901), a civil action in which prayers for a
declaratory judgment invalidating and an injunction precluding
prosecution under a Virginia sodomy statute, which expressly
included consensual sodomy, were denied. Although the District
Court in its opinion addressed the constitutionality of the
statute and concluded that it was not invalid, its disposition
included no declaration of constitutionality, but mereiy denied
the relief requested and dismissed the complaint. A summary
affirmance of the dismissal without declaration followed in the
United States Supreme Court. In that circumstance the
disposition by the Supreme Court does not necessarily signify
approval of the reasoning by which the lower court resolved the
case (Fusari v Steinberg, 419 US 379, 391 [concurring opn by
BURGER, Ch.J.}). Apart from the limited precedential value of

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APPENDIX C
Opinion of the New York State Court of Appeals

summary affirmance (see e.g., Edelman v Jordan, 415 US 651,
671; Hart & Wechsler, Federal Courts and the Federal System
(1977 Supp], at p 112, n 1) in Doe there was lacking any evidence
of threatened prosecution of the plaintiffs under the Virginia
statute — a factor arguably relevant to their standing to
maintain the action (cf. O'Shea v Littleton, 414 US 488). Thus,
the affirmance by the Supreme Court of the District Court’s
dismissal of the action may have been predicated on a lack of
standing on the part of plaintiffs. Subsequent to the decision of
the Doe case a member of that court stated that the court had
not yet “definitively answered the difficult question whether
and to what extent the Constitution prohibits state statutes
regulating such behavior (private consensual sexual behavior)
among adults” (Carey v Population Servs. Int., 431 US 678, 694, n
17 [opn by BRENNAN, J., concurred in by a plurality], swpra).

That difficult question, to the extent that it is posed by these
appeals, is before us now. For the reasons given above, we
conclude that the imposition of criminal sanctions such as those
contained in section 130.38 of the Penal Law is proscribed by the
Constitution of the United States. ;

Accordingly, on the appeal by the District Attorney of
Onondaga County the order of the Appellate Division should be
affirmed. On the appeals by defendants Peoples, Goss and Sweat

the orders of the Erie County Court should be reversed, the
convictions vacated and the informations dismissed.

JASEN, J. (concurring in result). While I cannot accept the
majority’s premise that the so-called “penumbral” right to
privacy which first appeared in Griswold v Connecticut (381 US
479) should be extended to encompass and protect any and all
types of consensual sexual behavior in private, I nonetheless
concur in result herein for I can discern no rational basis upon
which the Legislature could have decided to freely allow the
conduct in issue among married people and to make identical

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APPENDIX C
Opinion of the New York State Court of Appeals

conduct criminal among those for whom that estate is un-
desirable or unattainable.

I hasten to add that, in my opinion, the Legislature does have
the power to make moral judgments. However, that legislative
power is, as all others are, limited by the supervening require-
ment that it be exercised with the requisite evenhandedness.
Here, it was not.

GABRIELLI, J. (dissenting). Without making any effort to
define its boundaries or limitations, a majority of my colleagues
has recognized for the first time a constitutional right of per-
sonal autonomy broad enough to encompass at least the freedom
to indulge in those sexual practices which have long been
proscribed by our criminal law. Although the majority has
attempted to associate this “fundamental right” with the recent
Supreme Court decisions creating a “zone of privacy” to protect
certain familial decisions, it is apparent that the connection be-
tween this case and those decisions exists only on the most super-
ficial level and that the right of sexual choice established today is
really a wholly new legal concept bearing little resemblance to
the familiar principles enunciated in Griswold v Connecticut
(381 US 479) and its progeny. Because I cannot concur in the sub-
stance of the majority’s conclusion and because I am concerned
with the majority’s failure to articulate an analytical frame-
work for resolving future claims under this amorphous concept
of personal autonomy, I am compelled to cast my vote in dissent.

I begin with the premise that none of the cases relied upon by
the majority stand for the proposition that there is a generalized
right of privacy or personal autonomy implicit in the Federal
Bill of Rights. Nor do the cases cited in the majority opinion
provide support for the idea that the courts may invoke the due
process clause of the Fourteenth Amendment as a predicate for
striking down penal provisions which some members of the

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APPENDIX C
Opinion of the New York State Court of Appeals

judiciary may find distasteful or inconsistent with their own
notions of fundamental fairness. Indeed, were that not the case,
we could not have held as we recently did in People v Shepard (50
NY2d 640) that the statutory ban on the private possession of
marihuana (see Penal Law, §220.03) is not an unconstitutional
infringement of the right of an individual to do as he pleases in
his own home. To the contrary, had we concluded in Shepard as
the majority seems to have concluded in. this case that the
freedom to choose one’s own form of sensory gratification within
the confines of one’s own home is a constitutionally protected
“fundamental” right, we could not have sustained the statute at
issue in that case on the basis of mere “rationality,” but would
instead have been duty bound to conduct a more searching
inquiry to determine whether the State’s interest in the
legislative ban was truly “compelling” (see e.g., Roe v Wade, 410
US 113; Shapiro v Thompson, 394 US 618; Griswold v Connecti-
cut, 381 US 479, supra).

Arguing that the People have failed to demonstrate that
individuals who engage in consensual acts of sodomy are likely
to suffer any serious physical side effects, the majority has
attempted to distinguish the statutory prohibition at issue in
Shepard from that at issue in this case by stressing that the ban
which we upheld in Shepard was justified by a rational
legislative finding that marihuana use can be physically harmful
(pp 490-491). This assertion, however, represents a seriously
flawed understanding of the inquiry that must be pursued in
identifying such rights.

In order to determine whether the freedom to engage in a
particular activity is a constitutionally protected “fundamental
right,” we must look directly to the specific guarantees outlined
in the body of the Constitution and the Bill of Rights and to the
“penumbras, formed by emanations from those guarant[ees]”
(Griswold v Connecticut, 381 US 479, 484, supra). The nature and
extent of the State’s interest in regulating or proscribing the

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APPENDIX C
Opinion of the New York State Court of Appeals

activity in question are simply not relevant considerations at
this stage of the inquiry. Indeed, it is only after the court makes
a threshold determination as to whether a particular State
regulation impinges upon a “fundamental right” that such con-
siderations are brought into play. If it is determined, for
example, that a “fundamental right” is being impaired, the
regulation at issue cannot be sustained unless it is narrowly
tailored to effectuate some “compelling” governmental interest,
such as the State’s interest in protecting the health of its citizens
(see Roe v Wade, 410 US 113, supra; Shapiro v Thompson, 394 US
618, supra). On the other hand, once it is established that no
“fundamental rights” are at issue, the court may uphold the
State enactment if it is merely rationally related to some
legitimate governmental purpose which falls within the State’s
broad police powers (e.g., People v Shepard, 5) NY2d 640, supra).
By suggesting that the activity proscribed in this case involves a
“fundamental right” simply because it entails no significant
danger to health, the majority has created a truly circular consti-
tutional theory and has, in effect, injected an additional level of
confusion into this already rather murky area of the law.

Under the analysis utilized by the majority, all private,
consensual conduct would necessarily involve the exercise of a
constitutionally protected “fundamental right” unless the
conduct in question jeopardizes the physical health of the
participant. In effect, the majority has held that a State statute
regulating private conduct will not pass constitutional muster if
it is not designed to prevent physical harm to the individual.
Such an analysis, however, can only be based upon an unnec-
essarily restrictive view of the scope of the State's power to
regulate the conduct of its citizens. In my view, the so-called
“police powers” of the State must include the right of the State to
regulate the moral conduct of its citizens and “to maintain a
decent society” (Jacobellis v Ohio, 378 US 184, 199, quoted in
Paris Adult Theatre I v Slaton, 413 US 49, 59-60). Indeed,

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APPENDIX C
Opinion of the New York State Court of Appeals

without mentioning specific provisions, it is apparent that our
State’s penal code represents, in part, an expression of our
society’s collective view as to what is or is not morally acceptable
conduct. And, although the Legislature may not exercise this
power in a manner that would impair a constitutionally
protected “fundamental right,” it begs the question to suggest,
as the majority has, that such a right is necessarily involved
whenever the State seeks to regulate conduct pursuant only to
its interest in the moral well-being of its citizenry.

We may avoid the circularity in the majority’s reasoning in
cases such as this only if we utilize a two-tiered approach, taking
care to ascertain at the outset whether a “fundamental right” is
actually implicated without regard to the nature of the govern-
mental interest involved in the challenged statute. If no such
right is found to exist, we must refrain from interfering with the
choice made by the Legislature and rest content upon the
assurance that when the challenged statute is no longer
palatable to the moral sensibilities of a majority of our State's
citizens, it will simply be repealed.

Although our decision to sustain the statute challenged in
Shepard under settled principles of judicial restraint would seem
dispositive of the issue in this case, the majority has nonetheless
adopted a contrary view and has placed the claim of personal
autonomy asserted by defendants in the category of those ill-
defined fundamental rights which are protected by the
“penumbras” emanating from the Bill of Rights (Griswold v
Connecticut, supra, at pp 484-485) and by the concept of ordered
liberty implicit in the due process clause of the Fourteenth
Amendment (Roe v Wade, supra, at pp 152-153). I cannot agree,
however, that the right of an individual to select his own form of
sexual gratification should stand on any better footing than does
the right of an individual to choose his own brand of intoxicant
without governmental interference. Admittedly, the issue in this

A-42

APPENDIX C
Opinion of the New York State Court of Appeals

case is superficially distinguishable from the issue in Shepard, in
that here we are concerned with a claim involving freedom of
sexual expression, and it is therefore tempting to equate the
“right” asserted by defendants with other well-established
sexually related rights such as the right of an individual to
obtain contraceptives (Griswold v Connecticut, supra), the right
of a woman to terminate an unwanted pregnancy (Roe v Wade,
supra; see Doe v Bolton, 410 US 179) and the right of a citizen to
consume printed pornographic material in the privacy of his own
home (Stanley v Georgia, 394 US 557). But the decisions in
Griswold, Roe and Stanley cannot fairly be interpreted as
collectively establishing an undifferentiated right to unfettered
sexual expression (see Note, Constitutionality of Sodomy
Statutes, 45 Fordham L Rev 553, 575). Consequently, the
majority’s effort to justify its holding today as a mere extension
of these decisions is, in the final analysis, entirely unconvincing.

The “fundamental” rights recognized in Griswold, Roe and
their progeny are clearly not a product of a belief on the part of
the Supreme Court that modern values and changing standards
of morality should be incorporated wholesale into the due
process clause of the Fourteenth Amendment. To the contrary,
the language of the Supreme Court decisions makes clear that
the rights which have so far been recognized as part of our due
process guarantee are those rights to make certain familial
decisions which have been considered sacrosanct and immune
from governmental intrusion throughout the history of western
civilization. The point has been aptly made by Justice HARLAN
in his oft-quoted dissent in Poe v Ullman (367 US 497, 553,
quoted in Griswold v Connecticut, 381 US 479, supra, at p 499
(GOLDBERG, J., concurring]): “Adultery, homosexuality and the
like are sexual intimacies which this State forbids * * * but the
intimacy of husband and wife is necessarily an essential and
accepted feature of the institution of marriage, an institution
which the State not only must allow, but which always and in

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APPENDIX C
Opinion of the New York State Court of Appeals

every age it has fostered and protected. It is one thing when the
State exerts its power either to forbid extra-marital sexuality
*** or to say who may marry, but it is quite another when,
having acknowledged a marriage and the intimacies inherent in
it, it undertakes to regulate by means of the criminal law the
details of that intimacy.” Justice DOUGLAS also made clear the
nature of the “right of privacy” that was being protected when
he stated in Griswold v Connecticut (supra, at p 486): “We deal
with a right of privacy older than the Bill of Rights — older than
our political parties, older than our school system * * * It is an
association that promotes a way of life.”

This is not to suggest that the Federal Constitution protects
only those sexually related decisions that are made within the
context of the marital relationship. As the majority notes, such a
conclusion was effectively foreclosed when the Supreme Court
stated in Eisenstadt v Baird (405 US 488, 453, swpra): “It is true
that in Griswold the right of privacy in question inhered in the
marital relationship. Yet the marital couple is not an in-
dependent entity with a mind and heart of its own, but an
association of two individuals each with a separate intellectual
and emotional makeup. If the right of privacy means anything,
it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so funda-
mentally affecting a person as the decision whether to bear or
beget a child” (emphasis in original).

Nevertheless, contrary to the position taken by the majority, I
cannot agree that this language foreshadows a recognition by the
Supreme Court of a generalized right to complete sexual freedom
for all adults, whether married or single. Instead, as is suggested
by the careful wording of the quoted paragraph, I would conclude
that Eisenstadt stands only for the narrower proposition that
the ancient and “fundamental” right of an individual to decide
“whether to bear or beget a child” cannot be limited to married

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APPENDIX C
Opinion of the New York State Court of Appeals

adults (accord Hindes, Morality Enforcement Through the Crimi-
nal Law and the Modern Doctrine of Substantive Due Process,
126 U of Pa L Rev 344, 361-362).! Under this view, Hisenstadt
may be regarded as a simple extension of a long line of cases
protecting “freedom of personal choice in matters of marriage
and family life” (Roe v Wade, 410 US 113, 169, supra
[STEWART, J., concurring; emphasis supplied]; see Loving v
Virginia, 388 US 1 [personal decisions relating to marriage];
Prince v Massachusetts, 321 US 158 [decisions relating to family
relationships]; Skinner v Oklahoma, 316 US 535 [decisions
relating to procreation]; Pierce v Society of Sisters, 268 US 510;
Meyer v Nebraska, 262 US 390 [decisions relating to childbearing
and education)). Indeed, even the highly controversial decision in
Roe v Wade (supra) holding the freedom of women to obtain
abortions to be a constitutionally protected right may be
regarded as part of the continuum of cases that bring within the
ambit of the due process clause those familial decisions that his-
torically have enjoyed immunity from governmental regulation.
As the Roe court was careful to point out: “It perhaps is not
generally appreciated that the restrictive criminal abortion laws
in effect in a majority of States today are of relatively recent

1| find additional support for my interpretation of the Kisenstadt opinion in
subsequent pronouncements by the Supreme Court. In Paris Adult Theatre |
» Slaton (413 US 49, 68), for example, the court squarely rejected the argu-
ment that “conduct which @irectly involves ‘consenting adults’ only has, for
that sole reason, a special claim to constitutional protection”. In response to
this contention, the court observed: “Our Constitution establishes a broad
range of conditions on the exercise of power by the States, but for us to say
that our Constitution incorporates the proposition that conduct involving
consenting adults only is always beyond state regulation, is a step we are
unable to take” (footnotes omitted).

Similarly, in Roe v Wade (410 US 113, 154), the Supreme Court refused to
accept the contention that “the claim * * * that one has an unlimited right to
do with one’s body as one pleases bears a close relationship to the right of
privacy previously articulated in the Court's decisions”. The Roe court flatly
stated that “{t}he Court has refused to recognize an unlimited right of this
kind in the past”.

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APPENDIX C
Opinion of the New York State Court of Appeals

vintage. Those laws, generally proscribing abortion or its at-
tempt at any time during pregnancy except when necessary to
preserve the pregnant woman’s life, are not of ancient or even of
common-law origin. Instead, they derive from statutory changes
effected, for the most part, in the latter half of the 19th century”
(410 US 113, 129, supra).

The majority impliedly recognizes that the Supreme Court has
to date limited the protection of the Constitution to decisions
relating to the traditionally protected areas of family life,
marital intimacy and procreation. Yet the majority has also
concluded that there exists “no rational basis * * * for excluding
from the same protection decisions *** to seek sexual
gratification from what at least once was commoniv regarded as
‘deviant’ conduct” (p 488). I must disagree, however, because my
reading of the recent Supreme Court cases leads me to the
conclusion that the distinction repeatedly drawn in those cases
between freedom of choice in the historically insulated areas of
procreation, family life and marital relationships on the one
hand and the general freedom of unfettered sexual choice on the
other is more than just a temporary or artificial one.?

2While the majority has placed great reliance upon the decision of the
Supreme Court in Stanley v Georgia (394 US 557) as support for the propo-
sition that the Bill of Rights encompasses a general right of privacy and per-
sonal autonomy, that decision, in my view, is not susceptible of such an
expansive reading (compare Paris Adult Theatre I v Slaton, 413 US 49). In
Stanley, the court struck down a State statute that penalized the priv

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1546%3A1. Public record. Not legal advice.