State v. Thompson

Decision Date15 May 2002
Docket NumberNo. 2001-0333.,2001-0333.
Citation95 Ohio St.3d 264,767 NE 2d 251
PartiesTHE STATE OF OHIO, APPELLEE, v. THOMPSON, APPELLANT.
CourtOhio Supreme Court

Thomas L. Sartini, Ashtabula County Prosecuting Attorney, Ariana E. Tarighati, Chief Assistant Prosecutor, and Angela M. Scott, Assistant Prosecuting Attorney, for appellee.

Ashtabula County Public Defender, Inc., and Marie Lane, for appellant.

Heather C. Sawyer, urging reversal for amici curiae Lambda Legal Defense and Education, Inc., the Ohio Association of Criminal Defense Lawyers, and the Ohio Human Rights Bar Association.

COOK, J.

{¶ 1} This cause presents the issue of whether Ohio's importuning statute, R.C. 2907.07(B), violates the Equal Protection Clauses of the United States and Ohio Constitutions. Because we hold that the statutory subsection violates the Fourteenth Amendment to the United States Constitution and Section 2, Article I of the Ohio Constitution, we reverse defendant-appellant Eric Thompson's conviction for importuning.

I

{¶ 2} In July 1999, Thompson was charged with violating R.C. 2907.07(B) after he had solicited a male jogger by offering to perform a sexual act. Prior to trial, Thompson moved to dismiss the charge against him. Thompson argued that because the importuning statute discriminated against those of homosexual orientation, the statute violated the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Section 2, Article I of the Ohio Constitution. The trial court denied the motion to dismiss, and the case proceeded to a bench trial.

{¶ 3} The trial court found Thompson guilty. Thompson appealed to the Eleventh District Court of Appeals. That court found Thompson's argument that the importuning statute violated equal protection compelling, but "[w]ith considerable reluctance" followed a prior decision from this court that held that R.C. 2907.07(B) did not violate equal protection. Thompson then appealed to this court.

{¶ 4} The cause is now before this court pursuant to our allowance of a discretionary appeal.

II

{¶ 5} R.C. 2907.07(B) provides that "[n]o person shall solicit a person of the same sex to engage in sexual activity with the offender, when the offender knows such solicitation is offensive to the other person, or is reckless in that regard." The 1973 Legislative Service Commission comment to 1972 Am.Sub.H.B. No. 511, which enacted the current version of R.C. 2907.07(B), describes the operation and stated rationale behind the statute:

{¶ 6} "The solicitation of homosexual or lesbian activity is also prohibited, when the solicitor knows or has reasonable cause to believe the solicitation is offensive to the person solicited.

{¶ 7} "The section represents an exception to the general rule that `just asking' is not a criminal offense. * * * The rationale for prohibiting indiscreet solicitation of deviate conduct is that the solicitation in itself can be highly repugnant to the person solicited, and there is a risk that it may provoke a violent response."

{¶ 8} In State v. Phipps (1979), 58 Ohio St.2d 271, 12 O.O.3d 273, 389 N.E.2d 1128, the court relied on this stated purpose in construing R.C. 2907.07(B) "to proscribe only the `fighting' words category of unprotected speech. `Fighting' words are those `which by their very utterance inflict injury or tend to incite an immediate breach of the peace.'" Id. at 278, 12 O.O.3d 273, 389 N.E.2d 1128, quoting Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031. Thus, the Phipps court reached the following holding {¶ 9} "Under R.C. 2907.07(B), persons may not be punished for `solicit[ing] a person of the same sex to engage in sexual activity with the offender, when the offender knows such solicitation is offensive to the other person, or is reckless in that regard,' unless the solicitation, by its very utterance, inflicts injury or is likely to provoke the average person to an immediate retaliatory breach of the peace." Id. at paragraph one of the syllabus.

{¶ 10} Thompson asks this court to hold that R.C. 2907.07(B) violates the Equal Protection Clauses of the United States and Ohio Constitutions. The state in turn notes its agreement with the court of appeals, which found our prior decisions regarding R.C. 2907.07(B) problematic and asks that we "more fully explain why R.C. 2907.07(B) does not violate the Equal Protection clauses under the United States and Ohio Constitutions."

{¶ 11} The Fourteenth Amendment to the United States Constitution provides that "[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." Ohio's Equal Protection Clause in turn provides that "[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit * * *." Section 2, Article I, Ohio Constitution. We have construed these provisions as being "functionally equivalent," necessitating the same analysis. Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ. (1999), 87 Ohio St.3d 55, 59, 717 N.E.2d 286.

{¶ 12} Without revisiting the Phipps issue of whether homosexual solicitations targeted by R.C. 2907.07(B) constitute fighting words, we find that the statute is facially invalid as a content-based restriction on speech, which by extension violates the equal protection guarantees of both the United States and Ohio Constitutions. In reaching this result, we note that while the parties contend that this court should apply rational-basis review to determine the constitutionality of R.C. 2907.07(B), we must as a matter of law employ a more exacting level of scrutiny.

{¶ 13} "In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment * * * [courts] apply different levels of scrutiny to different types of classifications." Clark v. Jeter (1988), 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465. We use the same analytic approach in determining whether a statutory classification violates Section 2, Article I of the Ohio Constitution. State v. Williams (2000), 88 Ohio St.3d 513, 530, 728 N.E.2d 342. Thus, all statutes are subject to at least rational-basis review, which requires that a statutory classification be rationally related to a legitimate government purpose. Clark, 486 U.S. at 461,108 S.Ct. 1910,100 L.Ed.2d 465; Williams, 88 Ohio St.3d at 530, 728 N.E.2d 342. When a discriminatory classification based on sex or illegitimacy is at issue, we employ heightened or intermediate scrutiny and require that the classification be substantially related to an important governmental objective. Clark, 486 U.S. at 461,108 S.Ct. 1910,100 L.Ed.2d 465. And when classifications affect a fundamental constitutional right, or when they are based on race or national origin, we will conduct a strict-scrutiny inquiry. Id.; Williams, 88 Ohio St.3d at 530, 728 N.E.2d 342. This latter level of scrutiny demands that a discriminatory classification be narrowly tailored to serve a compelling state interest. United States v. Playboy Ent. Group, Inc. (2000), 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865; Painesville Bldg. Dept. v. Dworken & Bernstein Co., L.P.A. (2000), 89 Ohio St.3d 564, 567, 733 N.E.2d 1152.

{¶ 14} Although the parties contend that R.C. 2907.07(B)'s classification is based on sexual orientation, we find that characterization of R.C. 2907.07(B) erroneous. The plain language of the statute dictates that any person—a heterosexual, homosexual, or bisexual male or female—who solicits a person of the same sex to engage in sexual activity would be guilty of importuning, if the offender knowingly offended the solicitee or was reckless in that regard. Further, our decision in Phipps characterized the statutory classification as based on the nature of the offensive sexual content of the communication. Therefore, the United States Supreme Court's decision in R.A.V. v. St. Paul (1992), 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305, guides our analysis. Decided over a dozen years after our decision in Phipps, R.A.V. concerned a city ordinance that prohibited placing "on public or private property a symbol * * * which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." Id. at 380, 112 S.Ct. 2538, 120 L.Ed.2d 305. R.A.V., the defendant, had allegedly burned a cross on a black family's property, thereby violating the ordinance. Prior to trial, he moved to dismiss the charges in part on the theory that because the ordinance was an impermissible content-based limitation on speech, it was facially invalid under the First Amendment. After initially obtaining a dismissal, R.A.V. lost on appeal in state court and then brought the issue to the United States Supreme Court. The court was bound by the construction of the ordinance given to it by the state supreme court: that "the ordinance reache[d] only those expressions that constitute `fighting words.'" Id. at 381, 112 S.Ct. 2538, 120 L.Ed.2d 305. Accepting this characterization, the court held that even if "all of the expression reached by the ordinance is proscribable under the `fighting words' doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." Id.

{¶ 15} The rationale behind this decision is instructive. The court explained that the general proposition that fighting words "are `not within the area of constitutionally protected speech,' or that the `protection of the First Amendment does not extend' to them" is misleading if not taken in the proper context. (Citation omitted.) Id. at 383, 112 S.Ct. 2538,120 L.Ed.2d 305, quoting Roth v. United States (1957), 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and Bose Corp. v. Consumers Union of United States, Inc. (1984), 466...

To continue reading

Request your trial
54 cases
  • In re Y.E.F.
    • United States
    • Ohio Supreme Court
    • 22 Diciembre 2020
    ...Equal Protection Clause, we " ‘apply different levels of scrutiny to different types of classifications.’ " State v. Thompson , 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13, quoting Clark v. Jeter , 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). "[A]ll statutes are su......
  • In re L.C.C.
    • United States
    • Ohio Court of Appeals
    • 15 Noviembre 2018
    ...violates equal protection, courts apply different levels of scrutiny to different types of classifications. State v. Thompson , 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 13. If a statutory scheme draws a class distinction that involves either a suspect class or a fundamental righ......
  • In re J.M.P.
    • United States
    • Ohio Court of Appeals
    • 29 Septiembre 2017
    ...be upheld only if the challenged classification is narrowly tailored to serve a compelling state interest. State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶13; e.g., Regents of Univ. of California v. Bakke, 438 U.S. 265, 357, 98 S.Ct. 2733, 2782, 57 L.Ed.2d 750 (1978);......
  • In re J.R.F.
    • United States
    • Ohio Court of Appeals
    • 29 Septiembre 2017
    ...right, it will be upheld only if the challenged classification is narrowly tailored to serve a compelling state interest. State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶13; e.g., Regents of Univ. of California v. Bakke, 438 U.S. 265, 357, 98 S.Ct. 2733, 2782, 57 L.Ed......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT