dissenting.
I dissent. I believe the statute is viola-tive of due process and equal protection guarantees of the state and federal constitutions, and the majority opinion has not persuaded me otherwise.
Donna Roberts has a valid, final and otherwise enforceable judgment for support alimony. The State of Oklahoma, through enactment of § 1289(D), has declared her rights in that judgment “lost” due to her sexual conduct and living arrangement. That conduct was lawful and occurred in the privacy of her home, in a living arrangement which was also lawful.
We are not confronted here with a trivial question. Unquestionably Donna Roberts’ conduct and living arrangement are constitutionally protected. She has, as we all do, fundamental rights of privacy and freedom of expression and association surrounding and protecting her home and private behavior therein. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 14 L.Ed.2d 510, 85 S.Ct. 1678 (1965); Stanley v. Georgia, 394 U.S. 557, 22 L.Ed.2d 542, 89 S.Ct. 1243 (1969); Eisenstadt v. Baird, 405 U.S. 438, 31 L.Ed.2d 349, 92 S.Ct. 1029 (1972); Moore v. City of Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); New Jersey Welfare Rights Organization v. Cahill, 411 U.S. 619, 93 S.Ct. 1700, 36 L.Ed.2d 543 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
This statute clearly conflicts with, and infringes upon, these fundamental freedoms. Appellant, and others in like circumstances, are penalized by this provision in the exercise of their rights to privacy, and freedom of association in their own homes for behavior which is lawful and wholly unrelated to the purpose of alimony for support.
Alimony for support is based on a showing of need for continued support and main-*159tenanee. It serves the dual purposes of equitably providing for the recipient’s financial interests and protecting society from the potential burden of destitute divorcees being placed on the relief rolls.
Oklahoma is not among the jurisdictions which allow subsequent modification of alimony.
Prior to the enactment of the section in question, support alimony was subject to termination for only two events, both related to need: death or remarriage of the recipient.1 Death clearly ends the need for support. Remarriage has a legal connecting link with need, as the new spouse has formed a legal relationship and assumed the legal duty of support.2 Even with a new marriage however, the recipient may, within 90 days, attempt to show that some amount of support is needed and would not be inequitable.
Except for these provisions, alimony judgments formerly were not subject to modification once they became final. This was true even though due to subsequent events, equitable considerations might weigh heavily on the side of the payor spouse.3
The majority stumbles in its attempt to shore up the statute’s validity as being concerned with need rather than sexual conduct. The fault is not the author’s for it is impossible to do.
The provision is not concerned with need, but sexual conduct: voluntary cohabitation with a member of the opposite sex. That relationship is defined as “the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship” which is neither a common law nor a ceremonial marriage.4
This section of the statute arbitrarily creates a classification of persons who, by reason of certain sexual conduct, may have their otherwise nonmodifiable and nonter-minable judgments terminated or modified. On its face the legislation creates a classification unrelated to the purpose of support alimony.
Cohabitation is the explicit statutory ground for modification and it is the only fact which needs to be alleged in the motion. Efforts to save the statute by reliance on the provision that the court “shall reduce or terminate support payments upon proof of substantial change of circumstances relating to need for support”, are futile, for the next words of the statute are “or ability to support”.
While a payor spouse’s change of circumstances relating to his ability to support are irrelevant in all other situations, because the purpose of support alimony is the need of the recipient, in cohabitation cases the issue assumes sudden relevance.
I have no hesitation in saying that I do not believe there is any rational relationship between the conduct proscribed by § 1289(D) and the purpose of support alimony.
Because of the fundamental rights involved, the section could be justified only by a “compelling state interest”. See, e.g., Griswold v. Connecticut, supra.
Inasmuch as I do not believe the classification satisfies even the more lenient rational relationship standard, it is unnecessary to address the compelling state interest test.
Traditional application of the Equal Protection Clause denies government “the power to legislate that different treatment be accorded to persons placed by statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and sub*160stantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike, [citation omitted]” Reed v. Reed, 404 U.S. 71, 75-76, 30 L.Ed.2d 225, 92 S.Ct. 251, 253-54 (1971). Legislation must be rational, not arbitrary.5
The facts of this case bear out the point that the “live in lover” statute is not only unrelated to the purpose of providing alimony, but may, as it is here, be in direct conflict with it. This appellant has a very limited earned income and was shown to be in greater need of support at the time of the modification hearing than she was when the decree was originally entered. Her boyfriend has no obligation to support her and she contends that he does not do so. The only legal relationship between them is that of landlord and tenant. Her otherwise “vested” right in her alimony judgment has been divested by the state solely because she and her boyfriend spent twenty nights together over a period of approximately six months preceding this hearing.
Even in protecting the integrity of public fiscal programs, the government may not inhibit the exercise of constitutional rights or invidiously discriminate against its citizens, e.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); New Jersey Welfare Rights Organization v. Cahill, supra; U.S. Dept. of Agriculture v. Moreno, supra.
Here, of course, the government is not even protecting the public money, but is impinging on constitutional rights of one individual to the economic benefit of another in private litigation.
Even if the majority’s position that the statute is based on need were accepted as true, the classification of cohabiting former spouses could not be sustained. First because the statutory scheme creates a presumption of support by one under no duty to provide it. That presumption cannot be sustained by law or the facts of this case.
Also because to support such a lucid notion of the statute’s purpose, it would be necessary to satisfactorily show that sexual activity in a cohabiting relationship represents a sufficiently legitimate, accurate proxy for financial need. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). As in Orr, there is no reason here to use sex (here conduct, there gender) as a proxy for the “needy spouse”; the classification is gratuitous. At 282, 99 S.Ct. at 1113.
In fact the section produces perverse results. It is reasonable to assume that only the least financially able group of recipients — those in need of alimony — will be the group to lose benefits because of the provision. They are not able to maintain separate households. Others who are either independently wealthy or supported by a wealthy paramour, may avoid the consequences by living apart. For a similar factual perversity, see, U.S. Dept. of Agriculture v. Moreno, supra.
Additionally, this provision does not even make sense in terms of regulating sexual conduct. The most promiscuous recipient may still receive alimony. Only those who cohabit, even for financial necessity, are placed in peril.
If appellant were being supported by her boyfriend — a fact which she denies — how is her need, or lack of it, different from that of the alimony recipient who is being supported by parents, friends or a paramour who can afford to maintain a separate residence? How is her supposed lack of need resulting from this relationship of greater importance to the State of Oklahoma than a real lack of need which another recipient might realize as a result of individual wealth or support from a wealthy paramour with his own home?
The statute arbitrarily places only this classification of recipients in peril while the *161ostensible evil is identical but uncorrected for others similarly situated.6 This is an invidious discrimination void for underinclusion. In Eisenstadt v. Baird, supra, the Court set forth the following observation made by Mr. Justice Jackson, concurring in Railway Express Agency v. New York, 336 U.S. 106, 112-113, 93 L.Ed. 533, 540, 69 S.Ct. 463, 466-67 (1949), which makes the point:
“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”
The majority scoffs at appellant’s argument that the statute penalizes only the recipient of alimony for cohabitation while the payor is not penalized for similar conduct, but the point is well made. Sexual conduct — by either former spouses — has no bearing on the recipient’s need for support. See, e.g., Stanfield v. Stanfield, 22 Okl. 574, 98 P.2d 334 (1908).
Appellant’s analogy has in fact been often used by courts to underscore the absence of relationship between chastity by the recipient and need for support.7
This argument has even more validity than appears at first blush, however. It was astutely observed in a recent law review article that § 1289(D) does not limit the cohabitation modification sanctions to cohabitation by the party receiving alimony. Under the clear words of the statute, cohabitation by “a former spouse” sets the wheels in motion.8 A payor “former spouse” may cohabit and claim increased expenses from that relationship have changed his “ability to support” and require terminating or modifying alimony. This benefit would not be available to him if he remarried. So, for the payor spouse his cohabitation can, under the statute, result in his economic benefit. The statute rewards the payor for cohabitation by either former spouse, whereas the recipient is penalized by the cohabitation of either. Some others, in addition to myself, are bound to see this as a problem of fundamental unfairness.
If the state wished to provide for termination or modification of alimony for support when the recipient no longer needs it, it could pass a statute about need rather than sleeping arrangements. Lack of need due to individual wealth or support being furnished by another, could be proved like any other fact without regard to impermissible classifications.
I do not know of any legitimate state purpose served by picking out one group of people with a living arrangement which is lawful but outside the social norm and penalizing them. I therefore Dissent.
I am authorized to state that Justice IRWIN joins with me in this dissent.
. 12 O.S.1971, § 1289(A), (B).
. 32 O.S.1981, §§ 1-3, 10.
. See, e.g., Abler v. Abler, Okl.App. 586 P.2d 761 (1978).
.This definition appears to be a contradiction in terms or at least vague and confusing, as “conjugal” means “of or relating to marriage, the married state, or married persons in their mutual relations.” Websters Third New International Dictionary.
. For state decisions of similar import, see: Wilson v. Foster, Okl., 595 P.2d 1329 (1979); Lindsey v. State, ex rel., Dept. of Corr., Okl., 593 P.2d 1088 (1979); Gordon v. Gordon, Okl., 577 P.2d 1271 (1978); McFall v. City of Shawnee, Okl., 559 P.2d 433 (1977); City of Edmond v. Wakefield, Okl., 537 P.2d 1211 (1975); Bassett v. Bassett, Okl.App., 521 P.2d 434 (1974).
.Payors are of course placed in categories without a real difference in fact or law also. A payor whose former spouse cohabits is freed by that conduct of future support. While a payor whose ex-spouse is being fully supported by wealthy parents or lover who lives apart, has no remedy.
. See, Cole v. Cole, 142 Ill. 19, 31 N.E. 109 (1892); Bowman v. Bowman, 163 Neb. 336, 79 N.W.2d 554 (1956); Daniels v. Daniels, Id. 351 P.2d 236 (1960); and cases cited therein.
. Effect of Third Party Cohabitation on Alimony Payments, 15 Tulsa L.J. 772 (1980).