(specially concurring) .
I concur in this decision only because I am bound to do so as a judge of an intermediate appellate court. It is my opinion, however, that the majority opinion, insofar as it is applicable to the lewd and lascivious statute is incorrect in both law and logic.1 A.R.S. Sec. 13-652 prohibits any lewd or lascivious act which is committed in an “unnatural manner”.
In the case of State v. Valdez, 23 Ariz. App. 518, 534 P.2d 449 (1975) I discussed the statute and the Arizona decisions therein and opined that in view of the case of Jellum v. Cupp, 475 F.2d 829 (9th Cir. 1973), there was a serious question as to the constitutionality of our statute. The majority in Bateman and Callaway make no mention of the Ninth Circuit case. A reading of Jellum v. Cupp, supra, will reveal that there is more than a “serious question”. There is no doubt that our statute is, in fact, unconstitutional.
I do not believe that the case of State v. Mortimer, 105 Ariz. 472, 467 P.2d 60 (1970) can be relied upon as a constitutionally acceptable definition of the words “unnatural manner”. There the court stated that sexuality for purposes other than having children is “unnatural”. What does this mean? If one has sexual intercourse with his pregnant wife is he engaging in a lewd and lascivious act since it is not for the purpose of having children ? If the male withdraws before ejaculation is the act therefore lewd and lascivious? Is all foreplay prior to actual intercourse condemned and, if not what conduct in foreplay is condemned and what conduct is acceptable? The definition suggested in Mortimer is vague, overbroad, and cannot pass constitutional muster.
The majority opinion in Bateman and Callaway, recognized that the United States Supreme Court in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) and Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) upheld the right of privacy in sexual relations, whether the parties are single or married, but came to the illogical conclusion that this right does not exist when the legislature has declared the acts to be unlawful, stating:
“ . . . The legislature has thus made certain sexual behavior criminal by its power to regulate the health, morals and welfare of its people. This type of activity has not been discussed by the United States Supreme Court. We therefore hold that sexual activity between two consenting adults in private is not a matter of concern for the State except insofar as the legislature has acted to properly regulate the moral welfare of its people, and has specifically prohibited sodomy and other specified2 lewd and lascivious acts.”
*260If one were to apply the foregoing reasoning to Griswold and Eisenstadt one would be compelled to uphold the statutes involved in those cases since the legislature had declared the conduct to be unlawful. I cannot agree with such reasoning.
. The sodomy statute is not at issue in this ease.
. Acts done in an unnatural manner.