People v. Onofre

the indictment on the ground that the statute was an invasion of his constitutionally 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. In the cases in Buffalo City Court motions by defendants 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:

Ҥ 130.38 Consensual sodomy.

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

Ҥ 130.00 Sex offenses; definitions of terms.

“The following definitions are applicable to this article:

* * * *

“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.”

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. 1243 , 22 L.Ed.2d 542 (1969); the fourth amendment, Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); the equal protection clause of the fourteenth amendment, Loving v. Virginia, 388 U.S. 1 , 87 S.Ct. 1817 , 18 L.Ed.2d 1010 (1967); the ninth amendment, 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, Roe 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 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), contraception (Eisenstadt 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 , swpra\). 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 Eisenstadt. 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 consequence 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 Eisenstadt v Baird ( 405 US 438 , 453, supra): “It is true that in Gris-wold the right of privacy in question inhered in the marital relationship. 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]Iso 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

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 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 empirical 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 participants 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 disapproval 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

fee had been charged (Commonwealth v Bonadio, 490 Pa 91 ). 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 constitutionally protected right of privacy a statute making fornication 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 merely 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 a 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 Popu

lation Servs. Int., 431 US 678 , 694, n 17 [opn by Brennan, J., concurred in by a plurality], supra).

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.

(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 conduct criminal among those for whom that estate is undesirable 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 requirement that it be exercised with the requisite evenhandedness. Here, it was not.

(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 personal 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 between this case and those decisions exists only on the most superficial 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 substance of the majority’s conclusion and because I am concerned with the majority’s failure to articulate an analytical framework 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 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 Connecticut, 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 guarantees]” (Griswold v Connecticut, 381 US 479 , 484, supra). The nature and extent of the State’s interest in regulating or proscribing the 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 considerations 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, 50 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 constitutional 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 unnecessarily 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, 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 governmental 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 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 every age it has fostered and

Eisenstadt may be regarded as a simple extension of a long line of eases 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 childrearing 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 historically 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 vintage. Those laws, generally proscribing abortion or its attempt 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

regulations were routinely struck down as violative of certain basic, substantive freedoms that were thought to inhere in the due process clauses of the Fifth and Fourteenth Amendments (see, e.g., Roe v Wade, 410 US 113 , 167-171 [Stewart, J., concurring], 171-178 [Rehnquist, J., dissenting], sup ra; Griswold v Connecticut, 381 US 479 , 514-527 [Black, J., dissenting], supra; Tribe, American Constitutional Law, § 15-2; Craven, Personhood: The Right to Be Let Alone, 1976 Duke LJ 699 , 712-713; Epstein, Substantive Due Process By Any Other Name: The Abortion Cases, 1973 S Ct Rev 159). The Lochner doctrine was ultimately rejected by the Supreme Court, in part because it had placed the court in the position of a “superlegislature” enabling it to use the “vague contours” of the due process clause as a vehicle for striking down State legislation which it found to be inconsistent with its own contemporary views of natural law (Ferguson v Skrupa, 372 US 726 ; accord Williamson v Lee Opt. Co., 348 US 483 , 488; Day-Brite Light. v Missouri, 342 US 421 , 423). Indeed, inherent in the Lochner doctrine was the very real danger that a countermajoritarian institution such as the court would impose upon the elected officials of State government its ad hoc notions regarding the substantive content of the term “liberty” and would place restrictions upon the States’ power to govern over and above those mandated by the specific provisions contained in the body of the Constitution and the Bill of Rights. It was out of a recognition of this danger that the rule of judicial restraint and minimal judicial scrutiny of State legislation was born (see Tribe, American Constitutional Law, § 8-7).

In the wake of Griswold and Roe, it is no longer an intellectually defensible position to suggest that the once discredited doctrine of “substantive due process” is entirely dead and buried. On the other hand, it is far from clear that those two cases heralded an unqualified return to the days when a Judge acted as “a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness” (Cardozo, Selected Writings, Nature of the Judicial Process, at p 164, quqted in People v Shepard, 50 NY2d 640 , 646, supra). As the language of those decisions and their forerunners indicates, the “fundamental” rights so far recog

nized by the Supreme Court under the modern version of “substantive due process” have been strictly limited to those that may be traced to matters that were traditionally insulated from g’overnmental intrusion. In my view, it is precisely this limitation that differentiates the relatively recent “fundamental right” concept from the long discarded and truly pernicious doctrine enunciated in Lochner v New York (supra).

To suggest, as the majority does, that the concept of “fundamental rights” should be expanded to include a generalized right to sexual gratification in whatever form would be, in effect, to bring the law of “substantive due process” full circle by eliminating all of its present salutary limitations and restoring it to its former status as a vehicle for lawmaking by judicial fiat. The majority acknowledges in passing that the sexual,choice the defendants now assert as a matter of constitutional right was once regarded as “ ‘deviant’ conduct” (p 488), but it erroneously ascribes no legal significance to that fact, relegating it instead to an irrelevant phenomenon of theology and privately held moral beliefs. This rather glib refusal to take account of the historical treatment of consensual sodomy as criminally punishable conduct has left a gaping hole in the majority’s analysis.

In contrast to decisions relating to family life, matrimony and procreation, decisions involving pure sexual gratification have been subject to State intervention throughout the history of western civilization (see Griswold v Connecticut, 381 US 479 , 505, supra [White, J., concurring]; Poe v Ullman, 367 US 497 , 553, supra [Harlan, J., dissenting] ; Doe v Commonwealth’s Attorney for City of Richmond, 403 F Supp 1199 , affd 425 US 901 ; Dawson v Vance, 329 F Supp 1320 , 1322; State v Bateman, 25 Ariz App 1 , 4, revd in part 113 Ariz 107 [en banc]). Scholars from Aquinas to Blackstone considered even consensual sodomy to be as heinous as the crime of rape (43 Aquinas, Summa Theologiae, pp 246-249 [Gilby ed] ; 4 Blackstone’s commentaries *215; see, generally, Richards, Unnatural Acts and the Constitutional Right to. Privacy: A Moral Theory, 45 Fordham L Rev 1281 , 1292-1298). Indeed, as early as 1553