State v. Walsh

• Decision Date: 15 July 1986
• Docket Number: No. 67465,67465
• Citation: State v. Walsh, 713 S.W.2d 508 (Mo. 1986)
• Parties: STATE of Missouri, Appellant, v. Huber M. WALSH, Respondent.
• Court: Missouri Supreme Court

Page 508

713 S.W.2d 508

55 USLW 2070

STATE of Missouri, Appellant, v. Huber M. WALSH, Respondent.

No. 67465.

Supreme Court of Missouri En Banc.

July 15, 1986.

William L. Webster, Atty. Gen., Kevin B. Behrndt, Asst. Atty. Gen. Jefferson City, for appellant.

Richard Cooper, David O. Danis, St. Louis, for respondent.

Arlene Zaremblea, St. Louis, Abby R. Rubenfeld, Lambda Legal Defense and Educ. Fund, Inc., New York City, Gene P. Schultz, St. Louis, Amicus Curiae.

DONNELLY, Judge.

Respondent, Huber M. Walsh, was charged by information with attempted sexual misconduct, §§ 564.011, 566.090.1(3), RSMo 1978. The information stated that "on or about Wednesday, April 10, 1985 at approximately 10:30 a.m. at Dorsett & Marine Avenue, in the County of St. Louis, State of Missouri, the defendant touched Det. Steven Zielinski's genitalia through his clothing and such conduct was a substantial step toward the commission of the crime of sexual misconduct with Det. Zielinski and was done for the purpose of committing such sexual misconduct."

Prior to trial, respondent moved to dismiss the information upon the sole ground that § 566.090.1(3) denied respondent "equal protection of the law as guaranteed by the Constitution of the United States and the State of Missouri." The trial court granted the motion and dismissed, and the State prosecutes this appeal.

Section 566.090 states in pertinent part:

1. A person commits the crime of sexual misconduct if:

* * *

* * *

(3) He has deviate sexual intercourse with another person of the same sex.

Section 566.010 defines "deviate sexual intercourse" as:

[A]ny sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person;

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* * *

The Committee Comment to § 566.090 indicates that it was intended to criminalize deviate sexual intercourse "between consenting adults in private." There is no record before us to show whether the conduct charged occurred in the context of a private consensual transaction. Inasmuch as respondent challenges the facial constitutionality of the statute, a fully developed record is unnecessary to our determination of the issues.

The State argues that our inquiry is limited to a consideration of only that ground upon which the trial judge based her dismissal; namely, that § 566.090 deprived respondent of equal protection because "the statute would not be applicable to the defendant if he were a female."

Normally, constitutional issues must be raised at the earliest opportunity. Christiansen v. Fulton State Hospital, 536 S.W.2d 159, 160 (Mo. banc 1976). In this case, only the equal protection claim was raised before the trial court. On direct appeal to this Court from the summary dismissal, respondent raises the issue of his right to privacy as secured by the new substantive due process. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). The Supreme Court has recognized that classifications involving fundamental rights are reviewable under the equal protection guarantee. See, e.g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Therefore, by raising the equal protection challenge in the trial court, the right of privacy issue is also properly before the Court.

The issue is whether the Fourteenth Amendment to the United States Constitution prohibits the states from proscribing homosexual conduct. Neither the language of the amendment nor its history indicate that it was intended to prohibit the states from proscribing homosexual conduct. Indeed, resondent makes no such argument.

Rather, respondent and amici essentially argue that § 566.090.1(3) discriminates on the basis of the exercise of a fundamental right to sexual privacy, and is thus a suspect classification under the equal protection clause. Respondent also contends that § 566.090.1(3) "prohibits member[s] of the same sex from engaging in certain sexual activities. Thus, [a] class distinction is presented because it clearly prohibits males from sexual activity with males and females from sexual activity with females, but allows males to engage in sexual activity with females and [vice versa]."

The State concedes that the statute prohibits men from doing what women may do, namely, engage in sexual activity with men. However, the State argues that it likewise prohibits women from doing something which men can do: engage in sexual activity with women. We believe it applies equally to men and women because it prohibits both classes from engaging in sexual activity with members of their own sex. Thus, there is no denial of equal protection on that basis.

The State further contends that the statute makes no classification whatever; that § 566.090.1(3) merely prohibits conduct; and that it does not criminalize homosexuality, but only homosexual activity. We agree with this interpretation of the statute. However, such an interpretation does not dispose of the equal protection inquiry. Insofar as § 566.090.1(3) prohibits homosexuals from engaging in private consensual sexual activity, which is not prohibited to heterosexuals, it embodies a classification based upon sexual preference.

Respondent does not contend that he is a member of a group, the classification of which has been traditionally deemed "suspect." These classifications are race, e.g. Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964), national origin, e.g. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) and alienage, e.g. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). They obviously do not include sexual preference. Furthermore, respondent has failed to give any legal argument why the prohibition of homosexual activity is a suspect classification.

The classification at issue here is also outside the present list of classifications to which the Supreme Court has applied an intermediate level scrutiny. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (gender-based); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) (illegitimacy); Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (children of illegal aliens).

Amicus curiae American Civil Liberties Union argues for the application of "heightened scrutiny" to § 566.090.1(3), based on a "test" essentially similar to the inquiry undertaken by the Supreme Court in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In Cleburne, the Court applied this analysis to determine that classifications burdening the mentally retarded are not quasi-suspect. Undertaking a similar inquiry here, we conclude that the classification embodied in § 566.090.1(3) is not quasi-suspect.

The ACLU argues, based upon social science data, that the homosexual orientation is something over which "[a] person has very little control * * * is not acquired voluntarily and is extremely difficult, if not impossible, to change." First, the determination sought by the ACLU is one involving the consideration, evaluation and implementation of social science date relating to the causes, treatments, etc. of the homosexual orientation. The propriety of a court making such a determination is debatable. See, e.g. Miller & Barron, The Supreme Court, the Adversary System, and the Flow of Information to the Justices: A Preliminary Inquiry, 61 Va.L.Rev. 1187 (1975), Korn, Law, Fact and Science in the Courts, 66 Colum.L.Rev. 1080 (1966). We believe that the weighing of such social science data is better left to the legislative department and will defer to its determinations. Second, § 566.090.1(3) does not classify on the basis of a characteristic beyond one's control. The statute merely proscribes homosexual activity. It cannot be said in the usual circumstance that refraining from certain conduct is beyond control. Beyond prohibiting the specified conduct, the statute imposes no other burden. Whether the particular burden imposed is impermissible is a separate question.

It cannot be doubted that historically homosexuals have been subjected to "antipathy [and] prejudice." But, so have other classes whose members have violated society's legal and moral codes of conduct. There is a distinction between classifications that result from prejudice and judgments that result from legitimate classifications. The ACLU's position on this point begs the question of whether the classification is legitimate.

Finally, the ACLU contends that "homosexuals certainly have a strong claim [to political powerlessness] based on years of discrimination and derogatory stereotyping that inevitably augurs against bringing their legitimate concerns out into the open and into the mainstream of political give and take." We are unpersuaded. Homosexuals, as such, have never been denied the ability to engage in "political give and take." That being identified as a homosexual has involved certain political costs does not diminish this ability. The ACLU has again begged the question. If homosexual conduct is properly forbidden, any social stigma attaching to those who violate this proscription cannot be constitutionally suspect. The fact that the democratic process does not respond to those who violate its ordinances is no source of condemnation. Are we to say that drug addicts or pedophiliacs are a powerless class because the democratic process has refused to sanction the activity they seek to have sanctioned? Are we to say the same if society stigmatizes them? We think not. To hold that the losers in a public policy...