dissenting. In arriving at today’s decision, the majority ignores fundamental principles of constitutional law and the standard of review courts are obliged to follow in determining constitutional issues.
The majority refers to the “unusual, if not unique” procedural posture of this case and goes on to observe that it is “inclined to have some question as to the firmness of the ground upon which the city of Cleveland based its failure to enforce * * * [R.C. 2907.35(C)] as written and adopted by the General Assembly.” This concern is indeed justified. Instead of enforcing a duly enacted legislative pronouncement by which they are bound, Cleveland’s prosecuting authorities began to arrest and prosecute projectionists despite the specific statutory exemption contained in R.C. 2907.35(C). By sanctioning this course of conduct, the majority, in clear contravention of accepted constitutional principles, gives municipal authorities the power to disregard state statutes of which they do not approve.
Any discussion as to the validity of R.C. 2907.35(C) must begin with the presumption of constitutionality afforded all legislative enactments.
As was succinctly stated in paragraph one of the syllabus in State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142 [57 O.O. 134]:
“An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it mast appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible. ” (Emphasis added.) See, also, State, ex rel. Swetland, v. Kinney (1982), 69 Ohio St. 2d 567, 573 [23 O.O.3d 479]; State v. Saurman (1980), 64 Ohio St. 2d 137, 138 [18 O.O.3d 367]; State v. Renalist, Inc. (1978), 56 Ohio St. 2d 276, 278 [10 O.O.3d 408]; State, ex rel. Jackman, v. Ct. of Common Pleas (1967), 9 Ohio St. 2d 159, 161 [38 O.O.2d 404].
Thus, only “when it clearly appears that there has been a gross abuse of * * * [legislative] discretion in undoubted violation of some state or federal *136constitutional provision” will a legislative judgment be nullified. Williams v. Scudder (1921), 102 Ohio St. 305, at paragraph four of the syllabus.
The challenge to the constitutionality of R.C. 2907.35 (C) is that it creates a classification in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, in that it distinguishes between motion picture projectionists who have no managerial responsibility or financial interest in their place of employment from other non-managerial, disinterested employees pf establishments which exhibit material which may be obscene.5 However, the mere fact that the statutory exemption does not include employees who are not projectionists does not, in and of itself, make it unconstitutional.6 As long as all within the given class are treated equally, there is no violation of the Equal Protection Clause simply because the classification excludes those who might well have been included. State, ex rel. Burton, v. Greater Portsmouth Growth Corp. (1966), 7 Ohio St. 2d 34 [36 O.O.2d 19]; Heath v. Westerville Bd. of Education (S.D. Ohio E.D. 1972), 345 F. Supp. 501; Alkire v. Cashman (S.D. Ohio E.D. 1972), 350 F. Supp. 360; Porter v. Oberlin (1965), 1 Ohio St. 2d 143, 152 [30 O.O.2d 491]; Xenia v. Schmidt (1920), 101 Ohio St. 437. Rather, under the traditional equal protection test, unequal treatment of classes of persons by a state is valid if the state can show that any rational or reasonable basis exists for the inequality. Bd. of Edn. v. Walter (1979), 58 Ohio St. 2d 368 [12 O.O.3d 327], certiorari denied 444 U.S. 1015; State, ex rel. Clark, v. Brown (1965), 1 Ohio St. 2d 121. “Within the limits of those restrictive rules, a legislative body has a wide measure of discretion.” State v. Buckley (1968), 16 Ohio St. 2d 128 [45 O.O. 2d 469], at paragraph three of the syllabus; Porter v. Oberlin, supra, at paragraph two of the syllabus; Xenia v. Schmidt, supra. As this court stated in State, ex rel. Lourin, v. Indus. Comm. (1941), 138 Ohio St. 618, 619-620 [21 O.O.3d 490]:
*137“Neither the state nor the federal constitutional provisions guaranteeing uniformity and equal protection of the laws deprives the Ohio General Assembly of a broad power of classification and differentiation of persons and subject matter in legislative enactments. * * * ‘It is only when such attempted classification is arbitrary and unreasonable that the court can declare it beyond legislative authority.’ ” (Citations omitted.)
Our focus, then, in determining the constitutionality of R.C. 2907.35(C) is whether there is “any conceivable state of facts” which would have justified the General Assembly in distinguishing motion picture projectionists from other employees and thus exempting them from the operation of Ohio’s obscenity laws. Allied Stores of Ohio, Inc. v. Bowers (1959), 358 U.S. 522, 528 [9 O.O.2d 321], See, also, Ohio Bureau of Employment Services v. Hodory (1977), 431 U.S. 471. Appellants have offered several reasonable bases upon which the legislature might have created this classification, any one of which would be sufficient to uphold the constitutionality of R.C. 2907.35(C).
First, an obvious and legitimate- line is drawn between projectionists and other non-managerial and disinterested employees in that projectionists are not voluntary “employees” of any given theater. Rather, they are assigned to different theaters by their union.7 Second, unlike other employees, they must obtain a license in order to operate motion picture machines and thus practice their profession. Section 693.07 of the Codified Ordinances of the city of Cleveland.8 Third, the projectionist is the only disinterested employee who is responsible for performing certain duties aimed at the protection and safety of the theater patrons.9 Fourth, unlike other non-managerial employees, projectionists are in the position of completely preventing a motion picture from *138being shown. As projectionists can effectively prohibit the exhibition of a questionable film, the exemption is necessary to avert the danger that a protected and nonobscene film will be suppressed.10 Finally, projectionists, due to the nature of their jobs, do not have available to them certain legal defenses which are available to other disinterested employees.11
Whether this court believes that the distinction is valid is of no import. Our concern is whether there is “any conceivable state of facts” upon which the legislature could base its decision to so distinguish.
It is undisputed that the state has a legitimate interest in regulating obscenity. The extent to which it chooses to regulate it, however, is a matter for the General Assembly. Moreover, inasmuch as there is no common law obscenity — and, indeed, no common law crime12 — it is for the legislature to declare what actions in this area constitute criminal conduct. Our role is to determine whether this is a legitimate exercise of discretionary power. Today's decision, however, not only establishes a common law crime, but disregards the presumption of constitutionality afforded legislative enact*139ments, and, in effect, shifts the burden of proof to the General Assembly to justify its actions.13
Underlying today’s holding is the mistaken belief that a vote of unconstitutionality in this case is a vote against obscenity. While eliminating obscenity is certainly a laudable goal, it is not within the power of this court to rewrite legislative enactments. A judiciary should' not sit as a super legislature to judge the wisdom or desirability of legislative policy determinations.14 Nevertheless, the majority has done precisely this in substituting its judgment for the General Assembly’s.
The General Assembly, and not this court, is empowered with the responsibility for determining how to combat obscenity. It is our duty to decide whether the disputed classification has any rational basis — not whether it comports with this court’s perception of how the fight against obscenity is to be waged. I am satisfied that the instant classification is reasonable enough to meet the low level of judicial review traditionally afforded non-suspect classifications. See Vostack v. Axt (S.D. Ohio E.D. 1981), 510 F. Supp. 217 [22 O.O.3d 360]; Holloway v. Brown (1980), 62 Ohio St. 2d 65 [16 O.O.3d 47]; Massachusetts Bd. of Retirement v. Murgia (1976), 427 U.S. 307; Dandridge v. Williams (1970), 397 U.S. 471; Breard v. Alexandria (1951), 341 U.S. 622 [46 O.O. 74], In short, I cannot acquiesce in an attempt to elevate moralistic pronouncements to the status of enduring constitutional principles. I therefore respectfully dissent.
Paradoxically, the very class of persons the challenged law purportedly discriminates against were before this court only recently in State v. Burgun (1978), 56 Ohio St. 2d 354 [10 O.O.3d 485]. At that time, this court refused to even grant these supposedly aggrieved parties standing to contest the constitutionality of R.C. 2907.35(C). Today, the majority holds the same parties have been denied equal protection of the law.
In upholding the constitutionality of a statute which distinguished scrap yards from junk yards, this court cited with approval the following language contained in Central Lumber Co. v. South Dakota (1912), 226 U.S. 157, 160:
“* * * If a class is deemed to present a conspicuous example of what the legislature seeks to prevent, the Fourteenth Amendment allows it to be dealt with although otherwise and merely logically not distinguishable from others not embraced in the law.” State v. Buckley (1968), 16 Ohio St. 2d 128, at 134 [45 O.O.2d 469].
This concept clearly applies to the present case in that the legislature has specifically and unambiguously exempted “motion picture projectionists” from prosecution under R.C. 2907.31 and 2907.32. R.C. 2907.35(C).
In discarding this factor as one upon which the legislature could have legitimately based R.C. 2907.35(C), the majority states: “The continuance, or maintenance, of the existing contract arrangements between the projectionists’ union and the various theaters does not rise to the status of a legitimate state interest.”
This is not a proper application of the appropriate constitutional test, however. To reiterate, the question is not whether the projectionists have a legitimate state interest deserving of protection, but whether there is any conceivable reason upon which the legislature could have created the classification.
Section 693.07 of the Codified Ordinances of the city of Cleveland reads as follows:
“Only licensed picture machine operators shall be employed or permitted to operate any picture machine, unless exhibited by and incidental to the purposes of any charitable, religious, benevolent or public and private educational facilities. (Ord. No. 191-70, passed June 1,1970. Effective June 4, 1970).” (Emphasis added.)
In addition to the licensing requirement contained in Section 693.07 of the Codified Ordinances of the city of Cleveland, Chapter 693 contains other provisions which outline certain safety procedures to be followed in the projection booth. E.g., Section 693.04 (requiring that all projectors using combustible film be equipped with non-combustible magazines and a shutter in front of the projector’s condensors which can be instantly closed by the operator); Section 693.05 (requiring that all film not actually in the projector be kept in covered metal boxes); Section 693.06 (requiring that all hot carbons removed from the projector be deposited in a metal receptacle with a self-closing hinged cover).
*138Clearly these duties call for continuing supervision by the projectionist. Without the exemption contained in R.C. 2907.35(C), however, the projectionist would be subject to prosecution under R.C. 2907.31 which pertains to the dissemination of matter harmful to juveniles. He would thus be required to leave his position in the booth in order to determine if minors were present in the audience.
If the projectionists were not exempt from criminal liability, they would be forced to make subjective and editorial decisions as to the possible obscene content of any given film. The fear of possible criminal sanctions would likely result in the projectionist erring on the side of suppressing protected speech, thus creating a “chilling effect.” Were the film to be eventually adjudged obscene and the projectionist had not suppressed it, he would be subject to prosecution under R.C. 2907.32.
Indeed, the majority has recognized the predicament that invalidation of R.C. 2907.35(C) would cause when it observed: “[I]t is difficult to believe that management would permit any projectionist to act as a one-man censor board to edit or delete any portions of the film to be shown to the audience.”
A projectionist is in the peculiar position of necessarily viewing a motion picture for focusing and other purposes required by his employment thereby making it impossible for him to raise the defense of lack of “knowledge of the character” of the film if confronted with prosecution under R.C. 2907.31 or 2907.32.
In response to this contention, the majority states: “We believe that it cannot be successfully argued that there is any real differential among the employees of a theater as to the knowledge of the character of the material or performance involved for purposes of the statute * * * particularly in view of the rather explicit material shown and the written word and art work presented in newspapers and on theater marquees to publicize such motion picture production. ” (Emphasis added.)
This suggests that projectionists are obliged to speculate as to the suitability of any given film on the basis of its promotional literature and separate “hype” from factual accounting of a film’s content or be held legally responsible if the film in question is ultimately adjudged “obscene.”
See R.C. 2901.03(A) which states as follows:
“No conduct constitutes a criminal offense against the state unless it is defined as an offense in the Revised Code.”
The following excerpt exhibits the attempt by this court to switch the burden of proof: “The fact that this section of law may adversely affect a person’s employment, by itself, constitutes neither a valid defense to the crime nor a valid reason for exemption from prosecution.” (Emphasis added.) See, also, fn. 6, supra, and the quote contained therein.
As Chief Justice John Marshall observed in Fletcher v. Peck (1810), 6 Cranch (10 U.S.) 87, 128:
“The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes.”
See, also, the opinion of Chief Justice Waite in Sinking Fund Cases (1878), 99 U.S. 700, 718, in which he stated:
“One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.”
Both of the above-quoted excerpts were cited with approval by Justice Krupansky in State, ex rel. Swetland, v. Kinney, supra, at pages 575-576.