U.S. v. Lemons, 82-1557

• Citation: 697 F.2d 832
• Decision Date: 01 March 1983
• Docket Number: No. 82-1557,82-1557
• Parties: UNITED STATES of America, Appellee, v. Charles Loyd LEMONS, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 832

697 F.2d 832

UNITED STATES of America, Appellee, v. Charles Loyd LEMONS, Jr., Appellant.

No. 82-1557.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 9, 1982.

Decided Jan. 17, 1983.

Rehearing and Rehearing En Banc Denied March 1, 1983.

Paul D. Gordon, of the American Civil Liberties Union of Arkansas, Little Rock, Ark., for appellant.

W. Asa Hutchinson, U.S. Atty., Steven N. Snyder, Asst. U.S. Atty., Fort Smith, Ark., for appellee.

Jay M. Kohorn, Los Angeles, Cal., for amicus curiae American Ass'n for Personal Privacy.

Steve Clark, Atty. Gen., State of Ark. by Dennis R. Molock, Deputy Atty. Gen., Little Rock, Ark., amicus curiae.

Before HEANEY, and FAGG, Circuit Judges, and HENLEY, Senior Circuit Judge. ^*

HEANEY, Circuit Judge.

Charles Loyd Lemons, Jr., appeals his conviction by the district court ¹ on one count of violating the Arkansas "sodomy" statute, Ark.Stat.Ann. Sec. 41-1813 (1977). Lemons contends that the statute under which he was convicted, on its face, violates his constitutional right to privacy, creates a classification prohibited under the equal protection clause of the fourteenth amendment, and is an unconstitutional punishment of status under the eighth and fourteenth amendments. Because the statute as applied to Lemons does not infringe any protected privacy right or improperly discriminate against him based on sexual preference, and because the statute punishes conduct rather than status, we affirm his conviction.

I. FACTS.

On February 19, 1982, in the early afternoon, Terry Gross, a ranger for the Department of the Interior National Parks Service, observed Lemons and another male in vehicles parked next to each other in Hot Springs National Park, Hot Springs, Arkansas. Approximately five minutes after this observation, Gross noticed that both vehicles apparently had been abandoned and that the radio in one of them was playing loudly. He decided to investigate the situation and found that both vehicles were unoccupied.

Gross then proceeded to a public restroom which was in the vicinity. He heard groaning-type utterances coming from the restroom, entered the men's section of the facility, and saw the legs of two persons beneath the partition of one stall in the restroom. Through the opening in the partially closed door to the stall, he saw two individuals. He opened the unlocked door to find Lemons and another male engaging in oral sex. Gross arrested the men and issued a violation notice against Lemons ² charging him with violating the Arkansas sodomy statute. ³

The district court tried Lemons without a jury for violating Arkansas law on federal land under the assimilative crimes statute. 18 U.S.C. Sec. 13 (1976). See also 18 U.S.C. Sec. 3401(a) & (b) (Supp. III, 1979). Immediately prior to trial, Lemons filed a motion to dismiss, with a supporting memorandum, claiming that the Arkansas sodomy statute was unconstitutional on its face for the same reasons he now presses on appeal. The district court denied the motion subject to its renewal at a more appropriate time. The United States then put ranger Gross on the stand to testify about his observations and arrest of February 19, 1982. Lemons' attorney did not cross-examine Gross and the prosecution then rested. Lemons put on no direct evidence in his defense, but renewed his motion to dismiss on constitutional grounds. The court again denied the motion without further explanation and sentenced Lemons to ninety days imprisonment. The court stayed execution of that judgment pending this appeal.

II. DISCUSSION OF ISSUES.

A. Right to Privacy.

On appeal, Lemons thoroughly develops his argument that the Arkansas sodomy statute, on its face, prohibits private, adult, consensual sexual conduct between persons of the same sex. He claims this prohibition violates his right to "decisional" privacy, that is, the right to make private affectional choices, a right which he asserts is protected by the federal Constitution. Although the specific source of the constitutional right to privacy is unclear, see Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147 (1973), Lemons relies on several recent lower court cases which have held that the right extends to private, adult, consensual sexual conduct between persons of the same sex. E.g., Baker v. Wade, 553 F.Supp. 1121, (N.D.Tex. 1982); People v. Onofre, 51 N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947 (1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845 (1981). See also Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980). The conduct for which the district court convicted Lemons, however, occurred in a public restroom. Because we only examine the constitutionality of the Arkansas sodomy statute as the court applied it to Lemons, we do not reach the question whether the statute is constitutional under all hypothetical applications. ⁴

We limit our inquiry to the constitutionality of the statute as applied in this case pursuant to the prudential rule of judicial self-restraint established by the Supreme Court which requires federal courts to limit their constitutional scrutiny of statutes to the particular facts of each case. The Supreme Court characterizes this rule as an element of standing to raise constitutional questions. See County Court of Ulster County v. Allen, 442 U.S. 140, 154-155, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979); Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976); United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). The rule, however, is an expression of judicial self-restraint apart from the "case or controversy" requirement in Article III of the federal Constitution which is the basis of much standing doctrine. See Eisenstadt v. Baird, 405 U.S. 438, 443-444, 92 S.Ct. 1029, 1033, 31 L.Ed.2d 349 (1972) (finding that the defendant had sufficient interest in the litigation to meet Article III requirement and then examining "the Court's self-imposed rules of restraint" which limit review of a statute to the circumstances of its application and restrict litigants from raising the claims of third persons). This rule is a matter of federal judicial practice rather than constitutional mandate. See generally 13 Wright, Miller & Cooper, Federal Practice and Procedure Secs. 3531, 175-176 and 205 (1975) (discussing distinction between Article III requirement and prudential judicial restraint). Thus, although Lemons has constitutional standing under Article III to attack the Arkansas sodomy statute, the scope of his attack is limited by this prudential rule to the circumstances under which the statute was applied to him.

The prudential doctrine of judicial self-restraint which we apply here is "separability"--when possible, we must narrowly read a statute to be constitutional as applied to the facts of the case before us and cannot consider other arguably unconstitutional applications of that statute. See Monaghan, Overbreadth, 1981 Sup.Ct.Rev. 1, 5-6. The Supreme Court has recognized specific exceptions to this doctrine: a court may entertain facial attacks on statutes when an aggrieved third person could not properly raise an issue on her or his behalf, when the statute itself has an inhibitory effect on freedom of speech, when a limiting construction of a criminal statute would make the statute unconstitutionally vague, when a state court has pronounced that the statute is constitutional in all its applications, or in the rare case when a court can determine that the legislature would not want the statute to stand unless it could stand in all its applications. United States v. Raines, supra, 362 U.S. at 22-23, 80 S.Ct. at 523. None of these exceptions apply to allow Lemons to avoid the separability doctrine in the present case.

First, persons who seek to raise the privacy issue as it relates to the application of the Arkansas sodomy statute to acts done in private may do so outside the confines of the present litigation. Indeed, Lemons relies heavily on a recent federal district court decision striking down a similar provision of the Texas Penal Code in the context of a request for declaratory judgment. Baker v. Wade, supra, 553 F.Supp. at 1126. We have no indication that a similar request for declaratory judgment in Arkansas by persons fearing prosecution for private acts under the sodomy statute would not be feasible or would prove fruitless. We express no opinion on the merits of such an action.

Secondly, the "chilling effect" exception to the separability doctrine, which is traditionally called "overbreadth," consistently has been applied only to claims that a statute, though constitutional in its present application, tends to "chill" the constitutional free speech rights of others, in different contexts, in violation of the first amendment. See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970). Although some commentators have argued that this exception should extend to facial attacks based on other constitutional protections, id. at 852-853, Monaghan, supra, at 8-13, the Supreme Court has tended to limit this exception to traditional free speech cases. ⁵ See County Court of Ulster County v. Allen, supra, 442 U.S. at 155, 99 S.Ct. at 2223; Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 507, 102 S.Ct. 1186, 1198, 71 L.Ed.2d 362, 377 (1982) (White, J., concurring); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980). We follow this precedent and find that the overbreadth exception does not apply to Lemons' privacy claim.

Third, our limited review of the Arkansas sodomy statute will not render the statute unconstitutionally vague. The statute gives fair warning that certain sexual acts are prohibited. Our restricted reading that, at least as to those acts done in public, the statute does not violate any constitutional...