Kentucky v. Wasson

Kentucky v. Wasson (842 S.W.2d 487) was a 1992 Kentucky Supreme Court decision striking down that state's criminalization of consensual sodomy between same-sex partners, holding that this was a violation of both the equal protection of the laws and the right to privacy. The Kentucky case helped pave the way for many other states and eventually the United States Supreme Court to issue similar rulings.

The law at issue
At that time, Kentucky law criminalized consensual sexual relations between people of the same sex, even if conducted in private. Such conduct was a misdemeanor punishable by up to 12 months in jail and a fine of up to $500. Solicitation of same was also a misdemeanor, punishable by up to 90 days in jail and a fine of up to $250.

Factual background
Jeffery Wasson was arrested and charged with solicitation of same sex sodomy as the result of an undercover operation conducted by the Lexington, Kentucky police. The police drove to a selected area and conversed with people to see if they would be solicited for sex. An undercover officer taped approximately 20 minutes of a conversation with Wasson. Near the end of the conversation Wasson invited the officer to come home with him. When prodded for details, Wasson suggested sexual activities that violated the Kentucky statute prohibiting homosexual activity. In its recitation of the facts, the Kentucky Supreme Court noted that there "was no suggestion that sexual activity would occur anyplace other than in the privacy of Wasson's home. The sexual activity was intended to have been between consenting adults. No money was offered or solicited."

The initial trial court, Fayette District Court, dismissed the charges holding that the law was unconstitutional. Upon appeal, the Fayette Circuit Court reached the same conclusion. The Commonwealth appealed that decision. The Kentucky Supreme Court granted a transfer, bypassing the Kentucky Court of Appeals.

Kentucky Supreme Court decision
The case was granted transfer from Fayette Circuit Court directly to the Kentucky Supreme Court, bypassing the Kentucky Court of Appeals. In a 4-3 ruling struck down anti-sodomy laws in effect since 1860, declaring them unconstitutional in Kentucky law with the declaration that it violated both the right to privacy and the right to equal protection under the law found in the Kentucky Constitution. Justice Charles M. Leibson authored the majority opinion, which noted that significantly, Kentucky has a rich and compelling tradition of recognizing and protecting individual rights from state intrusion in cases similar in nature, found in the Debates of the Kentucky Constitutional Convention of 1890 and cases from the same era when that Constitution was adopted... Kentucky cases recognized a legally protected right of privacy based on our own constitution and common law tradition long before the United States Supreme Court first took notice of whether there were any rights of privacy inherent in the Federal Bill of Rights. Asserting that "state constitutional jurisprudence in this area is not limited by the constraints inherent in federal due process analysis", the majority opinion held that the law as written and enforced "infringed upon the equal protection guarantees found in the Kentucky Constitution."

The case was styled Commonwealth of Kentucky v. Jeffery Wasson, 842 S.W.2d 487. The decision was handed down on September 24, 1992.

The case was among the early ones to strike down same-sex sodomy laws on the grounds that such laws violated the Equal Protection doctrine. Four other states preceded Kentucky in striking down same-sex sodomy laws. New York in New York v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936 (1980) and Pennsylvania in Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980) did so on grounds similar to those cited by the Kentucky Supreme Court. A lower appellate court in Texas and the Wayne County Circuit Court in Michigan had also struck down same-sex sodomy laws by that time, though neither state's highest court had yet issued such a holding. Those cases were Texas v. Morales, 826 S.W.2d 201 (Texas App., Austin 1992) and Michigan Organization for Human Rights v. Kelly, No. 88- 815820(CZ) (Wayne County Circuit Court, July 9, 1990). Citing these cases, the Kentucky court wrote: "Thus our decision, rather than being the leading edge of change, is but a part of the moving stream." In time this statement was proven correct, as other states and eventually the United States Supreme Court reached the same conclusion as Kentucky had in Wasson.

At the time, the decision - which was based solely on interpretation of the Kentucky Constitution - was at odds with federal case law on the same subject. The United States Supreme Court had previously held in Bowers v. Hardwick, 478 U.S. 186 (1986) that federal constitutional protection of the right of privacy was not implicated in laws penalizing homosexual sodomy. It was not until years after the Wasson case that the United States Supreme Court revisited the issue and reversed its holding in Lawrence v. Texas.