dissenting:
I respectfully dissent.
I join in the dissenting opinion of Mr. Justice Hodges, but I would add these special remarks. I have spoken out before on the subject of strict construction of statutes which tend to make them unconstitutional. This case illustrates my oft-repeated remarks that strict constructionism is a double-edged sword and may often defeat the intent of the legislature, as, in my view, it does here. As pointed out in Justice Hodges’ opinion, the Federal Court in Colorado had advised the legislature in Goldman, supra, and we reiterated that advisement in Arnold, supra, that the legislature could not punish a state of mind or a status. Accordingly, I believe the legislature intended to pass a constitutional statute which would protect the general public from unwelcome sexual solicitation in a public place.
It is our duty to interpret a statute so as to constitutionally carry out the intent of the legislature, People v. Sneed, 183 Colo. 96, 514 P.2d 776. The United States Supreme Court has not hesitated at various times to return a case to a State Supreme Court for interpretation which might make a presumably facially invalid state statute constitutional. See e.g., Lewis v. City of New Orleans, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321.
*451In my view, the statute under consideration may properly be interpreted to require an overt act other than the loitering itself and is thus constitutional. It begs the question to assume, as the majority opinion does, that the solicitation for deviate sexual intercourse is no longer forbidden, for that is the very issue in this case. In my view, it is forbidden by the statute in question when coupled with loitering in a public place.
I am authorized to say that Justice Kelley joins in this dissent.