(dissenting).
Marriage is universally recognized as the starting point for legal rights and obligations. It is the sacred foundation from which families, comprising the nation’s fabric, spring. Fundamental to the marriage relationship is private, consensual sexual activity between husband and wife enjoying legal sanction and protection. Governmental intrusion into the sanctity of the marital bedroom is a violation of fundamental privacy and will not be tolerated. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); State v. Bateman, 25 Ariz.App. 1, 540 P.2d 732 (1975). The right of privacy protects individual rights and permits legal activity (including constitutionally permissible activity where an unconstitutional statute proscribes conduct) accomplished in private. Of course, much illegal activity is accomplished by stealth and under a cloak of secrecy. Once the veil of secrecy is forsaken or legally pierced, no right of privacy arises to shield criminal forays.
In discussing marriage, the basis for the right of privacy found in Griswold, Justice Douglas speaking for the court, said:
“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
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 485-86, 85 S.Ct. at 1682.
In his specially concurring opinion in Griswold, Justice Goldberg, joined by Chief Justice Warren and Justice Brennen, recognized the court’s holding in no way impinged upon a state’s proper regulation of sexual promiscuity or misconduct, then *273quoted approvingly from Justice Harlan’s dissent in Poe v. Ullman, 367 U.S. at 553, 81 S.Ct. at 1782, 6 L.Ed.2d at 1025:
“ ‘Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.’ ”' 381 U.S. at 499, 85 S.Ct. at 1689.
Thus we see marriage recognized as a fundamental institution in our society honored and protected by law. If the intimacies of sexual intercourse, regardless of marital status were protected by the right of privacy, then we must assume the effort and reasoning premising the right on the marriage relationship is in vain. Such assumption is unwarranted.
In Paris Adult Theater I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), the Chief Justice, speaking for the court and quoting his predecessor stated, “there is a ‘right of the Nation and of the States to maintain a decent society . . 413 U.S. at 59, 93 S.Ct. at 2636 quoting the dissent in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L. Ed.2d 793 (1964). The court held obscene motion pictures did not acquire constitutional immunity from state regulation simply because they were exhibited for consenting adults only. The court stated:
“Our prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included ‘only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, (1937).’ Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing.” 413 U.S. at 65, 93 S.Ct. at 2639.
The court endorsed Mr. Justice Holmes’ statement that :
“ ‘[T]he proper course is to recognize that a state Legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.’ Tyson & Brother v. Banton, 273 U.S. 418, 446, 47 S.Ct. 426, 433, 71 L.Ed. 718 [58 A.L.R. 1236] (1927) (dissenting opinion joined in by Brandeis, J.).” 413 U.S. at 60, footnote 11, 93 S.Ct. at 2637.
In Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), the court simply retained to single persons and married alike the decision whether to bear or beget a child. State v. Elliott, 88 N.M. 187, 539 P.2d 207 (1975), certiorari granted, heavily relied upon by the majority, is dubious authority carrying only the view of the author. One judge concurred in the result only and another expressed a strong dissent. Also see Hughes v. State, 14 Md.App. 497, 287 A.2d 299 (1972); State v. Lair, 62 N.J. 388, 301 A.2d 748 (1973).
Illicit sexual intercourse is inimical to the marriage relationship and as countless case reports attest, has begotten much grief. I cannot join my brethren embracing defendant’s conduct within the fundamental liberties protected by the Constitution and cherished by Americans.