concurring. I concur in the result reached by the Court but for different reasons. The majority relies heavily on recent United States Supreme Court decisions involving the right of privacy for its conclusion that the State cannot interfere with .the conduct proscribed by the New Jersey fornication statute. I believe they have misgauged the scope of those decisions. For the reasons developed below, I would rest the invalidity of this statute squarely on the ground that it conflicts with Article I, par. 1 of the New Jersey Constitution.
*221I fully agree with the dissenting opinion that causes should usually be decided upon noneonstitutional grounds where possible. This is not an inexorable rule. See Board of Ed., Bor. of Union Beach v. New Jersey Educ. Ass’n, 53 N. J. 29, 44 (1968); Peters v. Hobby, 349 U. S. 331, 349, 75 S. Ct. 790, 799, 99 L. Ed. 1129, 1143 (1955) .(Black, J., concurring). The conduct proscribed by the fornication statute is so widespread that we should face up to the constitutional issues now.
The defendant has advanced three constitutionally based arguments. First, he argues that the fornication statute, N. J. S. A. 2A:110-1, should not be applied to him because the uneven enforcement of that statute deprives him of the equal protection of the laws to which he is entitled under the Fourteenth Amendment to the federal Constitution. Second, he asserts that the fornication statute invades a federally constitutionally protected zone of privacy which the United States Supreme Court has found to exist in the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments. Third, he claims that the statute violates the right of privacy guaranteed by Article I, par. 1 of the New Jersey Constitution.
I
I agree with the State that the defendant has not established that he was deprived of the equal protection of the laws under the Fourteenth Amendment because of erratic enforcement of the statute. As the trial court stated, the defendant had the burden of showing not only that prosecutions for fornication were limited to a small proportion of those fornications which had occurred, but that the selection was based on some arbitrary or invidious classification. See Oyler v. Boles, 368 U. S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). This he failed to do.
*222 II
The United States Supreme Court in enunciating the perimeters of the right of privacy has conspicuously omitted any pronouncement to the effect that a fornication statute comparable to N. J. S. A. 2A:110-1 is proscribed by the federal Constitution. When we considered this question in 1971, referring to the concurring opinions of Mr. Justice Goldberg and Mr. Justice White in Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), and the dissenting opinion of Mr. Justice Harlan in Poe v. Ullman, 367 U. S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961), we concluded that there was no such federal restriction. State v. Lutz, 57 N. J. 314, 315 (1971); State v. Clark, 58 N. J. 72, 82-83 (1971). Mr. Justice Goldberg, who was joined in his concurrence by Chief Justice Warren and Mr. Justice Brennan, emphasized that the holding in Griswold "in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct” and stated' that the constitutionality of Connecticut statutes prohibiting adultery and fornication "is beyond doubt.” 381 U. S. at 498-499) 85 S. Ct. at 1689, 14 L. Ed. 2d at 523. Although not embodied in an actual holding, this language virtually compelled the conclusion we reached on the federal question raised in Lutz and Clark. Subsequent Supreme Court decisions have not reflected any changes to warrant a reversal or modification of that opinion. Por example, in Paris Adult Theatre I v. Slaton, 413 U. S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), the Court suggested by implication that state fornication statutes are not violative of the federal Constitution. Id. at 68, n. 15, 93 S. Ct. at 2641, 37 L. Ed. 2d at 463. The most recent Supreme Court pronouncement appears in Carey v. Population Services International, 431 U. S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977). There the Court invalidated a New York statute regulating the sale and distribution of contraceptives on the ground that the constitutionally protected right of privacy guarantees an in*223dividual’s liberty of using or not using contraception. Mr. Justice Brennan, writing for the Court,1 concluded that “at the very heart of [the] cluster of constitutionally protected choices” recognized in previous Supreme Court privacy eases2 is “the decision whether or not to beget or bear a child.” Id. at 685, 97 S. Ct. at 2016, 52 L. Ed. 2d at 684-685. The prohibitions under review in Carey clearly intruded upon the individual’s freedom to make decisions in this area.
In footnotes to the majority opinion, Mr. Justice Brennan emphasized that the Court did not purport to reach any constitutional questions raised by state statutes regulating private consensual sexual behavior among adults. Id. at 688, n. 5, 694, n. 17, 97 S. Ct. at 2018, 2021, 52 L. Ed. 2d at 687, 691. Mr. Justice White, in his concurrence, also stated that the result did not have the effect of “declaring unconstitutional any state law forbidding extramarital sexual relations.” Id.- at 702, 97 8. Ct. at 2025, 52 L. Ed. 2d at 696. In light of these disclaimers, Carey cannot be said to signal a departure from the view that the federal right to privacy permits a state to punish fornication.
*224Further, the Court’s summary affirmance3 of Doe v. Commonwealth’s Attorney for City of. Richmond, 403 F. Supp. 1199 (E. D. Va. 1975), aff’d 425 U. S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751, reh. den. 425 U. S. 985, 96 S. Ct. 2192, 48 L. Ed. 2d 810 (1976) (three-judge district court decision holding the state of Virginia could constitutionally apply-its sodomy statute to private sexual .conduct between consenting male adults),4 seems totally incompatible with the suggestion that the federal right of privacy protects “individual autonomy.” 75 N. J. at 211-212. P can di-scern no rational basis for excepting from the realm of “individual autonomy” the private consensual conduct which, according to City of Richmond, may be constitutionally prohibited by the states. Without some articulated basis for such an exception, then, I can only conclude that the Court continues to view the federal right of privacy as encompassing the narrower range of activity associated with choices related to childrearing and childbearing. See cases cited n. 2, supra. The fornication -statute at issue here does not involve' these choices. I cannot agree, then, that the right of privacy within the umbrella of the Fourteenth Amendment invalidates the statute. •
III
The New Jersey Constitution recognizes certain natural and unalienable rights of its citizens:
A11 persons, are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying *225and defending life and liberty * * * and of pursuing and obtaining safety and happiness. [N. J. Const. (1947), Art. I, par. 1]
We have hitherto recognized that this provision encompasses an individual right of privacy. In re Quinlan, 70 N. J. 10, 40, cert. den. sub nom. Garger v. New Jersey, 429 U. S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976). Article I, par. 1 is almost a copy of the comparable provision in the 1844 Constitution. In a monograph prepared for the 1947 New Jersey Constitutional Convention, Dean Heckel stated that “among the rights included” in Article 1, par. 1 of the 1844 Constitution is a “right of privacy.” 'Heckel, “The Bill of Rights,” in II Constitutional Convention of 1947, 1336 at 1339. He relied upon McGovern v. Van Riper, 137 N. J. Eq. 24, 33 (Ch. 1945), in which the court wrote that the right of privacy “is one of the ‘natural and inalienable rights’ recognized in article 1, section 1 of the constitution of this state.” Fo language change made in Article I, par. 1 by the 1947 Constitutional Convention would affect this construction.
The rights of two adults to make personal decisions are inherent in their freedom of thought. Implementation of those decisions in pursuit of their concept of happiness'manifests an exercise of human liberty. Whatever else may be said of happiness, it is best obtained in a climate of free decision where each individual has the choice of consenting or not to acts or events which may affect him. Different persons have differing spiritual and moral views and so long as their personal conduct does not affect others, individuals have freedom to think, decide and act as they see fit. This freedom is an aspect of their right of privacy. Private consensual sexual conduct represents an exercise of that right.
Unlike the United States Constitution, the New Jersey Constitution is not a grant of enumerated powers, but rather a limitation of the sovereign powers of the State vested in the Legislature. Behnke v. N. J. Highway Authority, 13 N. J. 14, 24 (1953). That legislative authority is circum*226scribed by constitutional provisions, In re Hague, 123 N. J. Eq. 475 (E. & A. 1930), including those expressed in Article I, par. 1. Although the Legislature, in exercising its powers, may incidentally affect the natural and unalienable rights of individuals to liberty and the pursuit of happiness which have been recognized in Article I, the validity of any statute directly limiting those rights should be carefully scrutinized in light of its legislative purposes.
At common law fornication was not a crime. As explained by Blackstone:
In the year 1650, when the ruling power found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only incest and wilful adultery were made capital crimes; hut also the repeated act of beeping a brothel, or committing fornication, were (upon a second conviction) made felony without benefit of clergy. But at the restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour. And these offences have been ever since left to the feeble coercion of the spiritual court, according to the rules of the canon law * * *. [W. Blackstone, Commentaries, Book IV, Ch. IV, *64-65]
See State v. Brenner, 132 N. J. L. 607, 609 (E. & A. 1945). The New Jersey Assembly initially declared fornication as an offense in a statute enacted in 1704. Allinson’s Laws of New Jersey 4, December 12, 1704, § 3. Legislative materials suggest that the statute was designed because of certain religious concepts. The preamble and title of the act indicate that it was passed to prevent immorality and moral turpitude. It was entitled “An Act for Suppressing Immorality” and its preamble refers to immorality having abounded too much “to the shame of Christianity, and the great Grief of all good and sober men * * *.” In addition to fornication and adultery, the act prohibited drunkenness, cursing, swearing, and “breaking the Lord’s day.”
In 1796 a general crimes act which fixed a $14 penalty for fornication was enacted and Section 3 of the 1704 act was repealed. “An Act for the Punishment of Crimes,” *227Paterson’s Laws 210, 264, § 74 (1800 ed.). In succeeding criminal statutes only the penalties for fornication were varied. In the criminal code of 1898 fornication was classified as a crime “Against Public Morals and the Institution of Marriage.” See “An Act for the Punishment of Crimes (Revision of 1898),” L. 1898, c. 235, § 48. There is no indication that the Legislature’s view of fornication expressed in 1704 and 1898 as an offense to public morality has been modified or that any object, other than enforcing a particular moral code, motivated its adoption of the fornication statute.5
The State rationalizes that the fornication statute is justifiable as a means of preventing the spread of venereal disease and the birth of illegitimate children. As the majority indicates, these grounds are not persuasive. More importantly, there is no evidence that this statute was intended as anything but an attempt to regulate private morality.
The Legislature cannot infringe on the rights of individuals who in private and without affecting others adopt and live by standards which differ from those of society. Even in the eighteenth century, it was recognized that a fornication statute could represent an unwarranted intrusion into that privacy. Smith v. Minor, 1 N. J. L. 19, 26 (Sup. Ct. 1790), construed the 1704 act to require proof of the birth of a child as an element of fornication to constitute a crime, as otherwise “it would subject behavior perhaps at worst merely imprudent, to critical investigation; and leave the actions and behavior of innocent persons exposed to idle conjecture, to unwarrantable construction, and impertinent curiosity * * It is only when the public interest would be substantially adversely affected by some exercise of the right of privacy or when the public interest would be other*228wise substantially promoted by legislation that the Legislature may infringe upon that right.
I agree with the majority that the judgment of the Appellate Division affirming the conviction of the defendant should be reversed and a judgment of acquittal should be entered.
Warey was a seven-two decision. Justices White, Stevens and Powell filed concurring opinions. Chief Justice Burger dissented. Justice Rehnquist filed a dissenting opinion.
Justice Brennan referred to Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965) (use of contraceptives) ; Loving v. Virginia, 338 U. S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967) (interracial marriage) ; Skinner v. Oklahoma, 316 U. S. 535; 62 S. Ct. 1110, 86 L. Ed. 1655 (1942) (procreation); Eisenstadt v. Baird, 405 U. S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972) - (contraception); Prince v. Massachusetts, 321 U. S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944) (family relationships) ; Pierce v. Society of Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (child rearing and education); Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) (child rearing and education); Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) (abortion).
it is clear that summary affirmances are to be taken as binding precedent; Hicks v. Miranda, 422 U. S. 332, 343-345, 95 S. Ct. 2281, 2288-2289, 45 L. Ed. 2d 223, 236 (1975), on the “precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U. S. 173, 176, 97 S. Ct. 2238, 2240, 53 L. Ed. 2d 199, 205 (1977).
We note that this Court in State v. Lair, 62 N. J. 388, 396 (1973), excluded consensual sexual conduct of married couples" from the interdiction of the New Jersey sodomy statute. . - •
Cf. Petition of Smith, 71 F. Supp. 968 (D. N. J. 1947) (existing fornication statute analyzed as a reflection of rules of morality and ethics).