# Doe v. Commonwealth's Atty. for City of Richmond/Dissent Merhige

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Merhige
Merhige, District Judge (dissenting).
I am in full accord with the majority as to their conclusion that this action does not fit within the compass of Fed. R.Civ.P. 23. Regretfully, however, my views as to the constitutionality of the statute in question, as it applies to consenting adults acting in the privacy of their homes, does not conform with theirs. In my view, in the absence of any legitimate interest or rational basis to support the statute's application we must, without regard to our own proclivities and reluctance to judicially bar the state proscription of homosexuality, hold the statute as it applies to the plaintiffs to be violative of their rights under the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. The Supreme Court decision in Griswold v. Connecticut, 381 U.S. 479, 499, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), is, as the majority points out, premised on the right of privacy, but I fear my brothers have misapplied its precedential value through an apparent over-adherence to its factual circumstances.
The Supreme Court has consistently held that the Due Process Clause of the Fourteenth Amendment protects the right of individuals to make personal choices, unfettered by arbitrary and purposeless restraints, in the private matters of marriage and procreation. Roe v. Wade, 410 U.S. 113, 153, 169, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); accord Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L.Ed.2d 201 (1973). See also Griswold v. Connecticut, supra, 381 U.S. 479, 498, 85 S.Ct. 1678 (Harlan, J., concurring). I view those cases as standing for the principle that every individual has a right to be free from unwarranted governmental intrusion into one's decisions on private matters of intimate concern. A mature individual's choice of an adult sexual partner, in the privacy of his or her own home, would appear to me to be a decision of the utmost private and intimate concern. Private consensual sex acts between adults are matters, absent evidence that they are harmful, in which the state has no legitimate interest.
In my view, the reliance of the majority on Mr. Justice Harlan's dissenting statement in Poe v. Ullman, 367 U.S. 497, 553, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), is misplaced. An analysis of the cases indicates that in 1965 when Griswold, which invalidated a statute prohibiting the use of contraceptives by married couples, was decided, at least three of the Court, relying primarily on Mr. Justice Harlan's dissent in Poe v. Ullman, and Mr. Justice Harlan himself, would not have been willing to attach the right of privacy to homosexual conduct. In my view, Griswold applied the right of privacy to its particular factual situation. That the right of privacy is not limited to the facts of Griswold is demonstrated by later Supreme Court decisions. After Griswold, by virtue of Eisenstadt v. Baird, 405 U.S. 430, 92 S. Ct. 1029, 31 L.Ed.2d 349 (1972), the legal viability of a marital-nonmarital distinction in private sexual acts if not eliminated, was at the very least seriously impaired. In Eisenstadt, supra, the Court declined to restrict the right of privacy in sexual matters to married couples:
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. 405 U.S. at 453, 92 S.Ct. at 1038.
See also, Lovisi v. Slayton, 353 F.Supp. 620, 625 (E.D.Va.1973).
In significantly diminishing the importance of the marital-nonmarital distinction, the Court to a great extent vitiated any implication that the state can, as suggested by Mr. Justice Harlan in Poe v. Ullman, forbid extra-marital sexuality, and such implications are no longer fully accurate.
"It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy." 367 U.S. 498, at 553, 81 S.Ct. 1752, at 1782 (1961) (Harlan, J., dissenting).
Griswold, supra, in its context, applied the right of privacy in sexual matters to the marital relationship. Eisenstadt, supra, however, clearly demonstrates that the right to privacy in sexual relationships is not limited to the marital relationship. Both Roe, supra, and Eisenstadt, supra, cogently demonstrate that intimate personal decisions or private matters of substantial importance to the well-being of the individuals involved are protected by the Due Process Clause. The right to select consenting adult sexual partners must be considered within this category. The exercise of that right, whether heterosexual or homosexual, should not be proscribed by state regulation absent compelling justification.
This approach does not unqualifiedly sanction personal whim. If the activity in question involves more than one participant, as in the instant case, each must be capable of consenting, and each must in fact consent to the conduct for the right of privacy to attach. For example, if one of the participants in homosexual contact is a minor, or force is used to coerce one of the participants to yield, the right will not attach. Towley v. Peyton, 303 F.Supp. 581 (W.D.Va. 1969); Hughes v. State, 14 Md.App. 497, 287 A.2d 299 (1972). Similarly, the right of privacy cannot be extended to protect conduct that takes place in publicly frequented areas. Smayda v. United States, 352 F.2d 251 (9th Cir. 1965); Lovisi v. Slayton, supra, 363 F. Supp. 620 (E.D.Va.1973). However, if the right of privacy does apply to specific courses of conduct, legitimate state restriction on personal autonomy may be justified only under the compelling state interest test. See Roe v. Wade, supra, 410 U.S. 113, 215-18, 93 S.Ct. 705 (Douglas, J., concurring).
Plaintiffs are adults seeking protection from the effects of the statute under attack in order to engage in homosexual relations in private. Viewing the issue as we are bound to, as Mr. Justice Blackmun stated in Roe v. Wade, supra, at 116, 93 S.Ct. at 709, "by constitutional measurement, free of emotion and predilection," it is my view that they are entitled to be protected in their right to privacy by the Due Process Clause.
The defendants, represented by the highest legal officer of the state, made no tender of any evidence which even impliedly demonstrated that homosexuality causes society any significant harm. No effort was made by the defendants to establish either a rational basis or a compelling state interest so as to justify the proscription of § 8.1-212 of the Code of Virginia, presently under attack. To suggest, as defendants do, that the prohibition of homosexual conduct will in some manner encourage new heterosexual marriages and prevent the dissolution of existing ones is unworthy of judicial response. In any event, what we know as men is not forgotten as judges--it is difficult to envision any substantial number of heterosexual marriages being in danger of dissolution because of the private sexual activities of homosexuals.
On the basis of this record one can only conclude that the sole basis of the proscription of homosexuality was what the majority refers to as the promotion of morality and decency. As salutary a legislative goal as this may be, I can find no authority for intrusion by the state into the private dwelling of a citizen. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) teaches us that socially condemned activity, excepting that of demonstrable external effect, is and was intended by the Constitution to be beyond the scope of state regulation when conducted within the privacy of the home. "The Constitution extends special safeguards to the privacy of the home,...." United States v. Orito, 413 U.S. 139, 43 S.Ct. 2674, 37 L.Ed.2d 513 (1973). Whether the guarantee of personal privacy springs from the First, Fourth, Fifth, Ninth, the penumbra of the Bill of Rights, or, as I believe, in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, the Supreme Court has made it clear that fundamental rights of such an intimate facet of an individual's life as sex, absent circumstances warranting intrusion by the state, are to be respected. My brothers, I respectfully suggest, have by today's ruling misinterpreted the issue--the issue centers not around morality or decency, but the constitutional right of privacy.
I respectfully note my dissent.

#### Notes

↑ . See Cotner v. Wenry, 394 F.2d 873 (7th Cir. 1968) (dicta); Buchanan v. Batchelor, 308 F.Supp. 729 (N.D.Tex.1970), rev'd on other grounds sub nom, Wade v. Buchanan, 401 U.S. 989, 91 S.Ct. 1221, 28 L.Ed.2d 526 (1971); State v. Elliott, 539 P.2d 207 (N.M. Ct.App., 1975).
↑ . Griswold v. Connecticut, supra, 381 U.S. 479, 486, 85 S.Ct. 1678 (1965) (Goldberg, J., with whom Chief Justice Warren and Brennan, J., join, concurring).
↑ . Lovisi v. Slayton, argued before a three member panel of the Court of Appeals for this Circuit, is currently awaiting argument before the Court en banc.
↑ . At least two state courts have reached a similar conclusion. United States v. Doe, Cr.Nos. 21860-71, 37025-72 (Superior Ct. D.C., Feb. 21, 1973); People v. Schwartz (Superior Ct. of Cal., Los Angeles County, Sept. 11, 1972).
↑ . See, Note, The Constitutionality of Laws Forbidding Private Homosexual Conduct, 72 Mich.L.Rev. 1613 (1975), for discussion on the lack of empirical data on adverse effect of homosexuals on the social system.
↑ . See also Ravin v. State, 537 P.2d 494 (Alaska 1975).