with whom CRAVEN and BUTZNER, Circuit Judges, concur (dissenting):
We accept as settled law the majority’s assumption that marital intimacies shared by the Lovisis when alone and in their own bedroom are within their protected right of privacy. We reject, however, the majority’s implied premise that this marital right of privacy is restricted to those situations in which it is enjoyed in secret. In this regard, the majority’s opinion is unsupported either by reason or by authority. We would hold that vis-a-vis one another, Aldo and Margaret Lovisi, as husband and wife, cannot constitutionally be guilty of sodomy in violation of Va.Code Ann. § 18.1-212, by reason of consensual sexual intimacies of whatever nature, whether practiced in secret or in the presence of a third party or a camera; and therefore the judgment of the district court should be reversed, with a direction to issue the writ. From the majority’s contrary conclusion, we respectfully dissent.
I.
The majority’s opinion states the facts sufficiently. We stress that the only issue before us is whether Aldo and Margaret Lovisi, husband and wife, may be criminally punished for consensual sodomitic acts performed on each other in the presence of Earl Romeo Dunn. Margaret Lovisi was also convicted of committing sodomy with Dunn, but the validity of that conviction is not before us. See Lovisi v. Slayton, 363 F.Supp. 620, 621 (E.D.Va.1973).
II.
That there exists a marital right of privacy need not be merely assumed; it is positive law. Beginning with the early decisions of Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), which invalidated a statute regulating the teaching of modern foreign languages in schools, and Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), which invalidated a statute requiring that children be sent to public schools, the Supreme Court has gradually evolved a concept of liberty applying to family life which has elevated the marital relationship to a place of near inviolable sanctity. In Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), the Court invalidated an habitual criminal sterilization statute, noting .that “[mjarriage and procreation are fundamental to the very existence and survival of the race,” 316 U.S. at 541, 62 S.Ct. at 1113, and applying a strict scrutiny test to a state scheme for sterilization of some habitual criminals based on a disputed theory that criminal traits are inheritable.
The concept that a right of privacy attached to the marriage relationship was articulated by several members of the Court in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), a case which concerned but did not reach the merits of Connecticut’s statute prohibiting the use of contraceptives. Mr. Justice Douglas, dis*353senting, characterized the statute which “reaches to the intimacies of the marriage relationship” as “an invasion of the privacy that is implicit in a free society.” 367 U.S. at 519-21, 81 S.Ct. at 1764-1765. Mr. Justice Harlan, also dissenting, described the case as one in which “the State is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full power of the criminal law.” 367 U.S. at 548, 81 S.Ct. at 1779. For this reason, he was of the view that “[t]he statute must pass a more rigorous Constitutional test than that going merely to the plausibility of its underlying rationale. . . . This enactment involves what, by common understanding throughout the English-speaking world, must be granted to be a most fundamental aspect of ‘liberty,’ the privacy of the home in its most basic sense, and it is this which requires that the statute be subjected to ‘strict scrutiny.’ ” 367 U.S. at 548, 81 S.Ct. at 1780. Mr. Justice Stewart concurred in both dissents.
In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Court invalidated Connecticut’s statute rendering the use or the giving of advice about the use of contraceptives a criminal offense. A majority of the Court concurred in an opinion which stated:
We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. 381 U.S. at 486, 85 S.Ct. at 1682.
The separate opinions filed recognized no less. Mr. Justice Goldberg said that “the right of privacy is a fundamental personal right,” 381 U.S. at 494, 85 S.Ct. at 1687, and that the statutes before the Court “deal with a particularly important and sensitive area of privacy — that of the marital relation and the marital home.” 381 U.S. at 495, 85 S.Ct. at 1687. Mr. Justice Harlan restated his views in Poe, and Mr. Justice White treated as “belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty.” 381 U.S. at 502, 85 S.Ct. at 1691.
Following Griswold, the Court invalidated Virginia’s statute prohibiting interracial marriage as unconstitutional under the equal protection and due process clauses of the Fourteenth Amendment, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967); and in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), invalidated a statute which made the exhibition of contraceptives and the giving of contraceptives to an unmarried person criminal acts. The Court found an insufficient state interest, i. e., health or morals, to justify the prohibition and concluded that it denied equal protection of the laws, to unmarried persons. Although dictum, the plurality opinion of Mr. Justice Brennan said:
If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. 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.
Finally, in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Court recognized a related right of privacy — the right of a *354woman to terminate a pregnancy by an abortion, unqualified to the end of the first trimester of pregnancy and qualified thereafter by proper state regulation to preserve the state’s interest in the preservation and protection of maternal health and preservation of the life of a viable fetus.
From these cases we would conclude that certainly within the marital relationship, and perhaps in some instances even without, the nature and kind of consensual sexual intimacy is beyond the power of the state to regulate or even to inquire. If the state may not restrict marital sexual relations to those whose object or risk is that of procreation, Griswold, supra, we think that the state is powerless to brand as sodomitic other consensual sexual practice within the marital relationship.
III.
Given the premise that a sufficient state interest to regulate or to inquire into consensual marital intimacies does not exist, we turn to the question of whether this marital right of privacy exists only if the consensual conduct is carried on in secrecy. We think that existence of the right is not conditioned upon secrecy.
The marital right of privacy — a term which lends itself to confusion since the term carries with it connotations of secrecy — 1 is not founded solely upon the Fourth Amendment. In Fourth Amendment cases, a voluntary relinquishment of one’s reasonable expectation of secrecy, such as a consent to search, waives the right. Cf. Poe v. Ullman, 367 U.S. at 551-52, 81 S.Ct. 1752 (Harlan, J., dissenting). The marital right of privacy has a base broader than the Fourth Amendment alone and the cases recognizing the right pitch it on grounds that belie that secrecy is a necessary element.
Certainly Meyer v. Nebraska, Pierce v. Society of Sisters, and Skinner v. Oklahoma, the foundations from which the right of marital privacy was developed, had nothing to do with secrecy. Their outcome depended upon the nature of the activity sought to be regulated and the relationship of that activity to a protected right. In Griswold, the Court invalidated Connecticut’s ban on the use of contraceptives at the behest of a doctor who was permitted to assert the rights of his patients who came to him for advice about contraceptives. These patients were admitting an outsider into their marital intimacies by seeking counseling and advice about contraception, yet they were not held to have lost their right to constitutional protection. Most recently, in Roe v. Wade, the Court, in upholding a woman’s exercise of her right to “privacy” by having an abortion, explicitly noted that “[t]he pregnant woman cannot be isolated in her privacy.” 410 U.S. at 159, 93 S.Ct. at 730. Not only was the developing fetus involved, but the abortion would have to be performed by a doctor, probably with the assistance of others.
Based on these authorities, we conclude that secrecy is not a necessary element of the right and that therefore the right exists, whether or not exercised in secret.2
We are at a loss to understand how or why the majority concludes otherwise. Its conclusion is unsupported by any authority; nor do we think it supported by reason. The majority assumes that the Lovisis have a constitutional right to practice marital sodomy in secret, and further suggests that this right would not be lost or “waived” if they talked or wrote about their sexual activities. Presumably this protection *355would extend to non-obscene but explicit photographs and movies even if sold on a commercial basis; yet, if a husband and wife were to seek certain types of medical help in an attempt to save a marriage endangered by sexual maladjustment, or if due to economic necessity, or for any other reason, they share a bedroom with other family members, under the majority’s holding the state may prosecute them for certain types of consensual marital acts. Surely these absurd results suggest that the presence of Dunn is irrelevant to the question before us. What would not be punishable sodomy in Dunn’s absence is not rendered punishable sodomy by his presence, although his presence may, of course, give rise to other prosecution for other crimes.3
IV.
Finally, we comment on the majority’s claim of support for its holding from the recent summary affirmance in 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 (1976). That case upheld the validity of an application of the statute with which we are concerned to consensual homosexual acts between adults in private.
The Supreme Court’s affirmance was summary. While it is an adjudication on the merits of the question which was presented, Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), the basis for the Supreme Court’s conclusion is necessarily obscure because it was unarticulated. The case may have been decided in contravention of the statements in some of the authorities on which we rely, thus overruling them, or it may have been decided on a narrower basis not inconsistent with them. Until the Supreme Court speaks more definitively, no one can tell. Of course, we would apply the holding in a case in which Virginia sought to punish consensual homosexual acts between adults, but we decline to go further and speculate whether it constitutes an adjudication, confirming or detracting from the principles on which we and the majority rely, or indicating what we should decide here.
. The dissenting opinion of Judge Craven well articulates this point.
. Just as secrecy is not essential to the assertion of a “privacy” right claim, the fact that conduct is carried on in secret does not itself entitle it to protection. “[I]t would be an absurdity to suggest either that offenses may not be committed in the bosom of the family or that the home can be made a sanctuary for crime. . . . Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however, privately practiced.” Poe v. Ullman, supra, 367 U.S. at 552-53, 81 S.Ct. at 1782. See Doe v. Commonwealth’s Attorney for City of Richmond, 403 F.Supp. 1199 (E.D.Va.1975) (three-judge court), aff’d, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (March 29, 1976).
. We would not foreclose the possibility that even married persons may be prosecuted for sodomitic acts performed on each other in public, under a properly drawn statute which makes clear that public exposure is the gravamen of the offense. While a married couple’s consensual sexual conduct itself can never be made criminal, even if carried on in public, sexual conduct may nevertheless be an element of another offense.
When the state chooses to regulate the public sexual conduct of married persons, it must choose means less intrusive to the marital relationship than the bald criminalization of the marital sexual intimacies themselves. In his dissenting opinion in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), Mr. Justice Harlan stressed that even assuming that the state was entitled to reach a moral judgment that the use of contraceptives by married couples was immoral and that the state could implement its policy by prohibiting the sale of contraceptives to be used by married persons, the state could not criminalize the act of using contraceptives:
Though the State has argued the Constitutional permissibility of the moral judgment underlying this statute, neither its brief, nor its argument, nor anything in any of the opinions of its highest court in these or other cases even remotely suggests a justification for the obnoxiously intrusive means it has chosen to effectuate that policy. Id. at 554, 81 S.Ct. at 1783.
Similarly, while the state may punish public exposure of marital sexual conduct, it may not choose means which make the act of sexual conduct the dominant characteristic of the offense.