dissenting.
Because I think the appellant has properly raised a valid equal protection challenge to the Arkansas sodomy statute on the ground that it impermissibly discriminates against homosexuals,1 I must dissent. The majority appears to have broken new constitutional ground in the field of equal protection, first by applying the separability doctrine to deny a facial attack by a member of the class against which discrimination is alleged, and second by concluding that because appellant could have been similarly punished under the Arkansas public sexual indecency statute, he suffered no discrimination. Justification in law or judicial policy for such an unprecedented departure from traditional equal protection analysis is not readily discoverable.
This court, in Country v. Parratt, 684 F.2d 588 (8th Cir.1982), said in part: “Equal protection analysis must always determine what the statute’s purpose is, whether the objective is legitimate, and how relevant the differences between the classes are to the statute’s goal.” Id. at 590. Before applying these guidelines, however, the majority here employs the separability doctrine to confine inquiry to whether the statute discriminates against homosexuals who engage in oral sex in public, and in so doing declines to follow the holding in Mancuso v. Taft, 476 F.2d 187 (1st Cir.1973), that “one within the terms of a classification may challenge it facially on equal protection grounds,” id. at 191. Yet, the First Circuit observed that that court knew of “no case in which the Supreme Court has refused to consider a facial equal protection challenge by one within the affected classification.” Id. My research does not reveal any subsequent case which renders this observation obsolete.2 See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Plyler v. Doe, - U.S. -, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); see also Country v. Parratt, supra (wherein this court analyzed the constitutionality of the Nebraska forcible rape statute on its face).
*840Nor do the cases relied on by the majority support the application of the separability doctrine to appellant’s equal protection claim. In New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979), plaintiffs challenged an employment policy of refusing to hire persons who use narcotics, including methadone. The district court reached outside the policy’s scope to consider the constitutionality of its hypothetical application to former methadone users. The Supreme Court held that analysis should be confined to the constitutionality of the policy’s application to current methadone users. The Court did not narrow the scope of the policy, but merely prohibited the district court from addressing situations not covered by the policy. In the present case, one need not hypothetically expand the clearly-marked bounds of the statute to find it applicable to homosexual conduct in private as well as in public.3
Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), is also relied on to support the application of the separability doctrine to appellant’s equal protection claim. However, the separability issue in Craig was whether a vendor of 3.2 beer in Texas could challenge the state statute prohibiting the sale of 3.2 beer to males under twenty-one and to females under eighteen on the ground that the statute violated the equal protection rights of males between the ages of eighteen and twenty-one. Unlike appellant in the present case, the challenger in Craig was not a member of the affected class.
The separability principles enunciated in Beazer and Craig thus are not applicable here. Appellant clearly is a member of the class against which he alleges discrimination by the unambiguous provisions of the Arkansas sodomy statute and should not be denied his right to challenge the facial constitutionality of the statute on equal protection grounds.
Having misapplied the separability doctrine, the majority concludes that because appellant’s conduct was similarly punishable under the Arkansas public sexual indecency statute, he suffered no discrimination and, thus, no deprivation of equal protection. Country v. Parratt, supra, is cited as support for this novel approach. Such reliance, however, is misplaced. Although in Country v. Parratt this court did consider the constitutionality of the Nebraska forcible rape statute in the context of the entire criminal code, the court did so in order to determine whether the statute on its face discriminated against the class of people to whom it was applicable. The court concluded that the forcible rape statute did discriminate against men who rape women by exposing them to more severe penalties than persons who commit other types of sexual assault.4 There is no suggestion in that case that if the individual challengers’ conduct had been subject to similar punishment under a different statute, no discrimination would have been found. Indeed, the factual circumstances surrounding the challengers’ arrests are not mentioned by the court; nor does the opinion reveal whether the individual challengers suffered discrimination by actually receiving more severe penalties than allowable under other statutes. Instead, the court applied the traditional equal protection guidelines as set forth in that case.
When the sodomy statute is viewed in the context of the Arkansas criminal code, it is clear that the statute discriminates against homosexuals by prohibiting private consensual sexual acts between adults of the same gender. Heterosexual couples who engage in identical behavior are not subject to *841criminal penalties under any provision of the criminal code. Thus, the uncontrovertible purpose of the sodomy statute is the regulation of consensual sexual activity between adults of the same gender. Cf. Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47, 49-50 (1980) (in view of other statutes proscribing public lewdness, rape, corruption of minors, etc., Pennsylvania sodomy statute deemed to have “only one possible purpose: to regulate the private conduct of consenting adults”). Construing appellant’s offense as “public oral sexual activity” in order to uphold the constitutionality of the statute distorts the purpose of the sodomy statute and distorts the nature of the case.5 In Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), the Supreme Court cautioned that although a court will strain to construe a statute as constitutional, it cannot pervert the purpose of the statute by judicial rewriting; nor can it consider whether the legislature could have enacted a valid statute, but must ask whether it did enact a valid statute. Id. at 515, 84 S.Ct. at 1668.
The issue is, then, whether the sodomy statute’s discrimination against homosexuals bears a rational relationship to any legitimate government interest.6 The burden is on the government to prove the existence of such a relationship. Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 151, 100 S.Ct. 1540, 1545, 64 L.Ed.2d 107 (1980); Country v. Parratt, 684 F.2d at 590. The record reveals no attempt on the government’s part to demonstrate factually to the district court a rational relationship between the proscription of homosexual conduct and a legitimate state interest. On appeal, the government and the state attorney general as amicus contend that the sodomy statute is rationally related to the promotion of morality and decency. However, mere naked assertions of public distaste or moral condemnation, without reference to evidence that public morality and decency are fostered by the statute, are insufficient to warrant bringing the weight of the criminal justice system to bear on consenting adults who engage in homosexual activity.7 Baker v. Wade, 553 F.Supp. at 1145 (N.D.Tex.1982); cf. Commonwealth v. Bonadio, 415 A.2d at 50 (sodomy statute applicable only to unmarried persons unconstitutional); People v. Onofre, 51 N.Y.2d 476, 415 N.E.2d 936, 940-42, 434 N.Y.S.2d 947, 951-52 (1980). Moreover, the government has failed to establish that the asserted interests in public morality and decency, as well as public health, safety and decency, as well as public health, safety and welfare, are not fully protected by statutes prohibiting public sexual indecency, sex with minors and incompetents, and forcible sex.
For all that appears in the record before us, the sodomy statute serves no other purpose than the imposition of “a concept of private morality chosen by the State.” People v. Onofre, 415 N.E.2d at 941, 434 N.Y.S.2d at 952. The statute is aimed at a class of people, homosexuals, by proscribing specific sexual conduct only if engaged in by persons of the same gender. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare [legislative] desire to harm a politically unpopular group cannot constitute a legitimate governmen*842tal interest.” United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2825, 37 L.Ed.2d 782 (1973). The validity of this principle is unchanged when, as in this case, a statute’s purpose is to discriminate against what may be a morally unpopular group.8
It is not necessary to go beyond “the real life factual situation at hand” in order to reach the conclusion, as I have, that appellant’s right to equal protection has been violated. I would therefore reverse appellant’s conviction on the ground that the Arkansas sodomy statute is unconstitutional.
. For this reason, I find it unnecessary to address the right to privacy issue.
. “Individual adjudications would ... appear unnecessarily to impose repetitive judicial scrutiny and possibly intervention.” Mancuso v. Taft, 476 F.2d at 192.
. Although the majority notes “the absence of state court directions that the statute applies to both public and private acts,” an interpretation limiting the sodomy statute’s scope to public acts plainly ignores the explicit unambiguous language of the statute and results in statutory redundancy because public sexual acts are prohibited by the public sexual indecency statute. A statement from an Arkansas court that the sodomy statute applies to private as well as public acts would be an unnecessary statement of the obvious.
. The statute was upheld, however, on the ground that it was rationally related to a legitimate government interest.
. According to the unmistakably clear language of the statute, the conduct with which appellant was charged, and for which he was convicted and sentenced, was engaging in oral sex with a person of the same gender. If, as the majority states, appellant was in fact convicted for “public oral sexual activity,” he was charged and convicted under the wrong statute, thereby raising additional constitutional questions of due process. A conviction for public oral sexual activity, prohibited by Ark.Stat. Ann. § 41-1811, does not require that the participants be of the same gender, a necessary element under the sodomy statute, and does require the element of public location, an element not required under the sodomy statute.
. Because on the record before us I think that the statute fails to meet this test, it is unnecessary to address appellant’s contention that a higher level of scrutiny should be applied.
. “The State’s rationale must be something more than the exercise of a strained imagination; ... the connection between means and ends .. . must have some objective basis.” Logan v. Zimmerman Brush Co., 102 S.Ct. at 1161.
. It has been said that “[w]ith respect to regulation of morals, the police power should properly be exercised to protect each individual’s right to be free from interference in defining and pursuing his own morality but not to enforce a majority morality on persons whose conduct does not harm others.” Commonwealth v. Bonadio, 415 A.2d at 50.