dissenting:
I would affirm the district court’s finding that 70 O.S. § 6-103.15 passes constitutional muster on every “front” challenged. The majority opinion renders the statute ineffective. It upholds the sanctions of the statute only if there is evidence proving that a teacher has engaged in “public homosexual activity” defined in 70 O.S. § 6-103.15(A.)(1.)(a.) and (b.).
The “punishment” referred to in the majority opinion which the majority holds may not be imposed on Oklahoma teachers is refusal of employment or reemployment, or dismissal or suspension if a teacher advocates, solicits, imposes, encourages or promotes “Public homosexual activity” (which, by specific reference to the Oklahoma criminal code is distinctly identified as “the unnatural, perverse, detestable and abominable act of sodomy”) in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees.
It is fundamental that state legislative bodies, in the exercise of state police power, may enact reasonable regulations in the interest of public health, safety, morals and welfare over persons within state limits. Oklahoma has, by enactment of the subject statute, endeavored to protect its school children and school employees from any teacher who advocates, solicits, encourages or promotes public or private homosexual activity pinpointed as the commission of the unnatural and detestable act of sod*1276omy. 21 Okla.Stat.Ann. § 886 entitled “Crime against nature” provides: “Every person who is guilty of the detestable and abominable crime against nature, committed with mankind or with a beast, is punishable by imprisonment in the penitentiary not exceeding ten (10) years.” Oklahoma has held that this section is not unconstitutionally vague even though it is general in its terms and circumstances, inasmuch as the terms convey adequate description of prohibited act or conduct to persons of ordinary understanding. Carson v. State, 529 P.2d 499 (Okl.Cr.1974); Canfield v. State, 506 P.2d 987 (Okl.Cr.1973), appeal dismissed, 414 U.S. 991, 94 S.Ct. 342, 38 L.Ed.2d 230 (1973), rehearing denied, 414 U.S. 1138, 94 S.Ct. 884, 38 L.Ed.2d 763 (1973); Moore v. State, 501 P.2d 529 (Okl.Cr.1972), cert. denied, 410 U.S. 987, 93 S.Ct. 1517, 36 L.Ed.2d 185 (1972). Oklahoma has clearly announced that the offense of sodomy is not to be countenanced within its borders. Federal courts should not function as superlegislatures in order to judge the wisdom or desirability of legislative policy determinations in areas that neither affect fundamental rights nor proceed along suspect lines. City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976).
In Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973), the Supreme Court upheld a Florida statute which proscribed “the abominable and detestable crime against nature, either with mankind or with beast” against a constitutional challenge of void for vagueness. The Fifth Circuit had held the statute infirm as unconstitutionally vague and void on its face for failure to give adequate notice of the conduct forbidden by law. In reversing, the Supreme Court observed that copulation per os and per anum had long been held by Florida courts violative of the challenged statute as the “abominable and detestable” crimes against nature referred to in the statute. Hence, the Supreme Court found that the statute was subject to a narrowing construction.
The majority, unlike the district court, holds that portion of the statute which allows “punishment” for teachers for advocating “public homosexual conduct” to be overbroad because it is “not readily subject to a narrowing construction by the state courts” and “its deterrent effect on legitimate expression is both real and substantial.” I disagree. Sodomy is malum in se, i.e., immoral and corruptible in its nature without regard to the fact of its being noticed or punished by the law of the state. It is not malum prohibitum, i.e., wrong only because it is forbidden by law and not involving moral turpitude. It is on this principle that I must part with the majority’s holding that the “public homosexual conduct” portion of the Oklahoma statute is overbroad.
Any teacher who advocates, solicits, encourages or promotes the practice of sodomy “in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees” is in fact and in truth inciting school children to participate in the abominable and detestable crime against nature. Such advocacy by school teachers, regardless of the situs where made, creates a substantial risk of being conveyed to school children. In my view, it does not merit any constitutional protection. There is no need to demonstrate that such conduct would bring about a material or substantial interference or disruption in the normal activities of the school. A teacher advocating the practice of sodomy to school children is without First Amendment protection. This statute furthers an important and substantial government interest, as determined by the Oklahoma legislature, unrelated to the suppression of free speech. The incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest.
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) is a poor vehicle for the majority to rely upon. There, the Supreme Court simply held that school children opposed to the Vietnam conflict were protected under the First Amendment in their practice of wearing black arm *1277bands in protest thereto, unless that conduct could be shown to substantially interfere or disrupt normal school activities. Tinker involved a symbolic demonstration involving a matter of national political significance. Political expression and association is at the very heart of the First Amendment. The advocacy of a practice as universally condemned as the crime of sodomy hardly qualifies as such. There is no need to establish that such advocacy will interfere, substantially or otherwise, in normal school activities. It is sufficient that such advocacy is advanced in a manner that creates a substantial risk that such conduct will encourage school children to commit the abominable crime against nature. This finds solid support in Tinker, supra, where the Court said “First Amendment rights must always be applied ‘in light of the special characteristics of the ... environment’ in the particular case.” 393 U.S. 503, 506, 89 S.Ct. 733, 736.
The Oklahoma legislature has declared that the advocacy by teachers of homosexual acts to school children is a matter of statewide concern. The Oklahoma statute does not condemn or in anywise affect teachers, homosexual or otherwise, except to the extent of the non-advocacy restraint aimed at the protection of school children. It does not deny them any rights as human beings. To equate such “restraint” .on First Amendment speech with the Tinker armband display and to require proof that advocacy of the act of sodomy will substantially interfere or disrupt normal school activities is a bow to permissiveness. To the same extent, the advocacy of violence, sabotage and terrorism as a means of effecting political reform held in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) to be protected speech unless demonstrated as directed to and likely to incite or produce such action did not involve advocacy of a crime malum in se to school children by a school teacher.
Facial overbreadth challenges are “manifestly strong medicine” which must be employed “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). When a party asserts such a challenge, the overbreadth “must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. at 615, 93 S.Ct. at 2917. A statute’s “plainly legitimate sweep” usually includes “controls over harmful, constitutionally unprotected conduct.” Id. A broadly-worded statute which does deter some protected speech or conduct may not require invalidation if that deterrence can, with confidence, justify such action. Id.
In Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), the Supreme Court set down its initial guidelines for determining when deterrence of speech or conduct does or does not justify invalidation of a statute. The Court held that a statute is overbroad if it proscribes speech or conduct which “merely advocates the doctrine in the abstract without any attempt to indoctrinate others, or incite others to action in furtherance of unlawful aims.” Id. at 599-600, 87 S.Ct. at 681-682. The Court drew a distinction between speech or conduct advocating an abstract doctrine or belief, which demands constitutional protection, and advocacy of unlawful action or acts, with the intent to incite, which deserves no such protection. See also Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 444, 94 S.Ct. 656, 659, 38 L.Ed.2d 635 (1974); Brandenburg v. Ohio, supra; Yates v. United States, 354 U.S. 298, 318-27, 77 S.Ct. 1064, 1076-1081, 1 L.Ed.2d 1356 (1956). I submit that in the context of the Oklahoma public school system, the advocacy of sodomy by a teacher in a manner “that creates a substantial risk” it will come to the attention of school children deserves no First Amendment protection.
There is nothing abstract about a teacher advocating to school children the commission of the criminal act proscribed by section 886, supra. The expression proscribed by § 6-103.15 is the advocacy of the commission of the very act held to be a criminal act in Canfield. Thus, the deterred speech or conduct concerns “advocating,” “pro*1278moting” and “encouraging” school children to commit the crime of sodomy. In the context of the public school system involving the teacher-student relationship, it cannot be said that the advocacy of such action is mere advocacy of an abstract doctrine or belief. See Keyishian, supra 385 U.S. at 599-600, 87 S.Ct. at 681-682. To hold otherwise ignores the difference between children and adults.
I would affirm.