Jeffrey Wasson was charged with having solicited an undercover Lexington police officer to engage in sexual intercourse, criminalised under the Kentucky Revised Statute (KRS) 506.300 which covers ‘solicitation’ to commit any criminal offence. The criminal offence in question was under KRS 510.000, which punishes ‘deviate sexual intercourse with another person of the same sex.’ Under the provision, it does not matter that the act is consensual, in private or involves a caring relationship rather than a commercial one. Charges were brought to the Fayette District Court where the judge held the statute violated Wasson’s right of privacy. The Fayette Circuit Court agreed with the lower court’s decision. The Commonwealth appealed and the case was heard by the Supreme Court of Kentucky.
The Commonwealth argued that the basis for criminalising consensual intercourse between persons of the same sex, when the same acts between persons of the opposite sex were not criminalised, was that the ‘level of moral indignation felt by the majority of society against the sexual preferences of homosexuals justifies having their legislative representatives criminalize these sexual activities.’
The Court held that ‘the guarantees of individual liberty provided in our 1891 Kentucky Constitution offer greater protection of the right of privacy than provided by the Federal Constitution as interpreted by the United States Supreme Court, and that the statute in question is a violation of such rights; and, further, we hold that the statute in question violates rights of equal protection as guaranteed by our Kentucky Constitution.’
The Kentucky Supreme Court found that the right to privacy was an integral part of the guarantee of liberty within Section 2 of the 1891 Kentucky Constitution. It drew heavily on Commonwealth v Campbell which held that the Kentucky Constitution ‘prohibited state action thus intruding on the “inalienable right possessed by the citizens” of Kentucky.’ In Campbell, the Court addressed the right to privacy: ‘it is not with the competency of government to invade the privacy of a citizen’s life and to regulate his conduct in matters in which he alone is concerned, or to prohibit him any liberty the exercise of which will not directly injure society.’
In considering equal treatment, the Court stated: ‘The issue here is not whether sexual activity traditionally viewed as immoral can be punished by society, but whether it can be punished solely on the basis of sexual preference.’ The court concluded that criminalisation of same-sex sexual intercourse was arbitrary and that ‘it denied “equal” treatment under the law when there is no rational basis.’ It found: ‘simply because the majority…finds one type of extramarital intercourse more offensive than another, does not provide a rational basis for criminalizing the sexual preferences of homosexuals.’
The Supreme Court of Kentucky found that the constitutional Equal Protection Clause discussed by the US Supreme Court in Bowers v Hardwick– which held protection of the right of privacy was not implicated in laws penalising homosexual sodomy- was not an issue to address in this case. The Court stated ‘we discuss Bowers in particular, and federal cases in general, not in the process of construing the United States Constitution or federal law, but only where their reasoning is relevant to discussing questions of state law.
The Court held that the judgment of the Fayette Circuit Court should be reversed with directions that the case be remanded to the Fayette District Court for trial on the merits.
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