(concurring).
I fully agree with my colleagues in denying the motions to dismiss which were (1) that the plaintiffs had no standing to prosecute this case and (2) that the doctrine of abstention should be applied.
With due deference, I find myself unable to otherwise concur with the action of my two colleagues in their judgment that the Tennessee Public Act, Chapter 176, is unconstitutional for the reason that its meaning is so vague as to controvert the minimal standards of due process under the Fourteenth Amendment of the Federal Constitution.
There can be no doubt that all criminal statutes must have an ascertainable standard of guilt, Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146; Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774, whereby: (a) A citizen may reasonably inform himself as to the law and thus avoid his violation;, (b) officers making arrests for alleged violations of the law will not be required to simply guess in ascertaining the guilty from the innocent; (c) and finally the courts have reasonable guidelines in effectuating the intent of the legislation.
In regard to these criteria the United States Supreme Court has had occasion to state that the terms of the statute must be sufficiently explicit to inform those who are subject to it as to what conduct on their part will render them liable to its penalties and to guide the courts trying those who are accused. United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367; Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562. Other cases state the principle of construction in a somewhat different manner. A state statute which either forbids or requires a doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential elements- of due process. Connally v. General Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840.
On the other hand, it must be borne in mind that only reasonable degree of certainty can be demanded. In Boyce Motor Lines v. United States, supra, the Court said:
But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions.
In concluding whether a particular statute measures up to the constitutional standards of clearness, two basic statutory constructions must be observed: (1) All duly enacted statutes must, if possible, be construed procedurally as well as substantially in favor of their constitutionality. 16 C.J.S. Constitution § 98. Also see: South Utah Mines & Smelters v. Beaver County, Utah, 262 *846U.S. 325, 43 S.Ct. 577, 67 L.Ed. 1004; St. Louis Southwestern Ry. Co. v. State of Arkansas ex rel. Norwood, Ark., 235 U.S. 350, 35 S.Ct. 99, 59 L.Ed. 265; Karpark Corp. v. Town of Graham, D.C.N.C., 99 F.Supp. 124, affirmed C.A.4, 194 F.2d 616.
(2) In regard to procedure as well as substance all duly enacted statutes, of their very nature, bear an extremely strong presumption of constitutionality. 16 C.J.S. Constitutional Law § 99:
Likewise, any ambiguity in a statute must be resolved in favor of its constitutionality. Further, a statute or resolution will be upheld by the courts unless it clearly appears, or is shown to be, in violation of or prohibited by the constitution. Other holdings are that such violation or prohibition must be shown, or appear, conclusively, plainly, or palpably, or as stated by the courts in other eases, unmistakably, manifestly, positively, indisputably, definitely, completely, inevitably, convincingly, unquestionably, undoubtedly, obviously, patently, substantially, or beyond a, any, or all reasonable doubt, or, in the language of other decisions, beyond a, any, or all rational, substantial, or serious doubt, or beyond question, or in such a manner as to leave no hesitation in the mind of the court. [The number of pages occupied in CJS by this relatively short quotation concerning constitutional statutory construction is indicative of the staggering number of footnote eases supporting the long list of adjectives herein used.]
Bringing these general provisions of statutory construction into present focus it becomes incumbent to apply these guidelines to Tennessee Public Act, Chapter 176. As pointed out in the majority opinion, this state statute makes it an offense (1) to operate a nudist colony and (2) makes it an offense for any person to engage in nudist practices.
I think the differences between my colleagues and myself arise from the meaning and scope of the words “nudist” and “nudism”. The first and most logical place to check the accuracy of one’s understanding in regard to these terms is a good dictionary. The majority opinion has given definitions from several dictionaries. I utilized one of the dictionaries therein used and give definitions of related words, particularly the words “nude” and “nudity” to illustrate the point that they are basically different in meaning from the words “nudist” and “nudism”.
Colony “***n***A group of persons united by a common characteristic or interest living in a limited section surrounded by others not so united * * * (also) the section or quarter occupied by such a group * * * ”
Nudism “* * * n * * * The cult or practice of living unclothed for reasons of health.” (Only definition given)
1 Nudist “***N***An advocate or practitioner of nudism.” (Only definition given)
2 “ * * * adj: of or relating to nudists or nudism.”
Nudity “***n***i; the quality or state of being nude 2: a nude figure, esp. as depicted in art. (Only definition given)
1 Nude “ * * * adj * * * Devoid of clothing; UNCLOTHED b: UNDRAP-ED”
2 Nude “***n***an unclothed person 2: the condition of being unclothed or undraped.”
Webster’s Third New International Dictionary (Unabridged) G & C Merriam Co., Springfield, Mass. (1961)
It seems to me that a cursory glance at these definitions bears out what the average “man-on-the-street” knows, *847namely, that one who is temporarily nude or in a temporary state of nudity in no way implies that such person is a nudist or engaged in nudist practices. It is inconceivable to me that the board of directors of a YMCA or health club or like places, which permit nude swimming, sun bathing, or exercising, are the operators of nudist colonies. To me it is very far out to think that the head- of a house would be operating a nudist colony because members of his family are temporarily nude within the home. It is equally inconceivable that the persons who are temporarily in the nude for the purposes just above-mentioned could possibly be nudist practitioners. People who are nudists, that is, members of nudist colonies, live naked as against the type people who are together and temporarily unclothed for the purpose of recreation or otherwise. Also nudists are members of a sect or cult. I have never heard of nude swimmers at the YMCA, or like practitioners, being called members of a sect or cult, and I have never heard of a manager of a YMCA, or a father in the home, being considered the operator of a cult or sect that believed in living without clothes. As far as I am concerned, I am of the firm belief that in this day people fully understand what a nudist colony is and what a nudist practitioner is. A nudist colony, I think, is generally understood to be a group of people of both sexes who seclude themselves from the public eye and live together without any clothes and that any person who engages in nudist practices is a member of such nudist colony.
The distinction between nudity and nudism is borne out historically as well as grammatically, for this cult found its genesis in the German nackt kultur (“naked culture”) groups in the early part of the twentieth century. Prior to World War I they were distinguishable not only by their lack of clothes but by their strong nationalistic tendencies as well. In the period between the two wars, however, this latter distinction faded away. Following the German example many societies were formed in England, France, Scandivania, and a few other European countries. During the 1930’s similar cults or societies took root in this country and Canada. Their growth, however, was stunted by the Second World War. It is historically characteristic of these groups that they not only do not attempt to force others to espouse their beliefs but prefer to practice nudism in a secluded area as far away as possible from the strictures of society. Encyclopedia Britannica, Inc. U.S.A. (1962), vol. 16, pages 594 and 594a. In Germany, as elsewhere, nudists still hold to their historical beliefs and practices. In this country of their origin, the “Association for Free Body Culture” has increased in membership from 1000 in 1949 to over 50,000 today. Indicative of their innocuous character, the Government of West Germany has officially sanctioned 80 nudist beaches.1
The majority say that the statute does not set out whether the practices therein forbidden are to be in public or quasi-public places. The members of the legislature that enacted the statute, as well as all concerned, or not concerned for that matter, know that there is in Tennessee a law against indecent exposure. The legislature would not be passing a law to reach people who live naked in public places when the law already covered such behavior.
It might be here pointed out that apparently there is only one law similar to the law attacked and that is in Arkansas, which has not been tested. Several cases cited in the majority opinion on this question are all based upon statutes of various wordings prohibiting indecent exposure and lewdness.
For the reasons I have set forth above, I cannot agree with my two brother judges that the Tennessee Public Act, Chapter 176, falls short of the constitutional minimum for statutory “terminological exactitude”. It is my belief that the con*848stitutional requirement of procedural due process is suitably met by the statute.
The nature of substantive due process is, however, another problem entirely. In this regard I have strong misgivings concerning the Tennessee Nudism Statute and question whether, regardless of the propriety of its grammatical construction, it does not unjustifiably deny liberty by improper encroachment upon the right of privacy and freedom of association.
In determining the constitutionality of the substantive aspects of the statute before this court it seems to me that it is necessary to come to grips with two integral and interrelated liberties.
1. Does this statute transgress the minimal standards of substantive due process by an unwarranted invasion upon the right of privacy of those who wish to engage in the cult of nudism?
None who make it a point to keep current with United States Supreme Court rulings, particularly recent ones, could have any doubt that the right of privacy is now constitutionally protected. That Court has wisely recognized that the Constitution creates a “right of privacy, no less important than any other right carefully and particularly reserved to the people.” Griswold et al. v. State of Conn., 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, citing Mapp v. State of Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 6 L.Ed.2d 1081. As I have stated, it is apparent that the right of privacy is constitutionally protected. It is the when and how which create the problems.
Invasion of privacy, an action unknown to early common law, was first recognized as a tort. Much credit for this recognition must be given to the now famous 1890 article by Warren and Brandéis in 4 Harv L Rev 193. This right was first given nodding recognition as a constitutional issue in several dissents by Justice Brandéis. Subsequently it received a somewhat less grudgingly, though certainly limited, acceptance in cases concerning searches and seizures and restraints on speech, press and assembly. [For partial summary of the evolution of this- right see Gibson v. Florida Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929, (concurring opinion by Justice Black, footnote 7)]. In these cases right of privacy was conceived of as a concomitance of other rights specifically granted by the Constitution. From this timorous genesis the right of privacy seems to have emerged by way of Mapp v. State of Ohio, supra, and Griswold, et al. v. State of Conn., supra, from a purely peripherial concept primarily used to buttress other more fundamental rights, to the view that “the right of privacy is a fundamental personal right, emanating ‘from the totality of the constitutional scheme under which we live.’ ” Poe v. Ullman, 367 U.S. 497, 502, 81 S.Ct. 1752, 6 L.Ed.2d 989, dissenting opinion of Justice Douglas cited with approval in Gris-wold, et al. v. State of Conn., supra, concurring opinion of Justice Goldberg. Also see 16A C.J.S. Constitutional Law § 574, page 606, Right of privacy.
Even a cursory scanning of Griswold, supra, would immediately convince the reader that there is a substantial agreement among the justices, with the exception of Justice Black and Justice Stewart, that to a reasonable extent the right of privacy is constitutionally protected. But on the other hand, even the most cautious and meticulous reader would be unable to pinpoint which provision of the Constitution secures this right, for the majority of the Court appears to disagree concerning this point. However, I am convinced that the operators of nudist colonies and persons engaged in nudist practices are constitutionally entitled to the right of privacy, which is a liberty protected by the Due Process Clause of the Fourteenth Amendment rendering this state statute invalid.
2. Does this statute similarly violate the cult of nudism’s right of association?
In Gibson v. Florida Investigation Committee, supra, the Court has stated:
This Court has repeatedly held that rights of association are within the *849ambit of the constitutional protections afforded by the First and Fourteenth Amendments. N. A. A. C. P. v. State of Alabama, 357 U.S. 449 [78 S.Ct. 1163, 2 L.Ed.2d 1488]; Bates v. City of Little Rock, 361 U.S. 516 [80 S.Ct. 412, 4 L.Ed.2d 480] ; Shelton v. Tucker, 364 U.S. 479 [81 S.Ct. 247, 5 L.Ed. 2d 231], N. A. A. C. P. v. Button, 371 U.S. 415 [83 S.Ct. 328, 9 L.Ed.2d 405]. The respondent Committee does not contend otherwise, nor could it, for, as was said in N. A. A. C. P. v. [State of] Alabama (US) supra, “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. 357 U.S. at 460, [78 S.Ct., at 1171]. And it is equally clear that the guarantee encompasses protection of privacy of association in organizations such as that of which the petitioner is president; * * *
*«•*»**
And, as declared in N. A. A. C. P. v. [State] Alabama, supra, (357 U.S. at 462 [78 S.Ct., at 1171]) “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] * * * effective * * * restraint on freedom of association * * *. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. * * * Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” So it is here.
In NAACP v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, 1498, 1500, the Supreme Court ruled that NAACP did not have to disclose the names of its members by reason of a state mandate. This right awarded to NAACP was from performing an action in connection with their constitutionally protected right of association.
The Supreme Court ruled in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, 420 that, “ * * * there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” Thus the First Amendment giving the absolute right of freedom of association (assembly) includes freedom of action in connection therewith. It is quite clear that nudists have the constitutional freedom to engage in association for the advancement of beliefs and ideas. Attached to this freedom of association is also the freedom of action which utilizes the beliefs and ideas for the assemblies, if such action is compatible with the freedom of others.
As heretofore pointed out the State of Tennessee has a law against indecent exposure and lewdness. Ryall v. State, 204 Tenn. 422, 321 S.W.2d 809. Certainly the State has a right under its police power to protect the public from lewd conduct and indecent exposure. Of course, these proscribed acts must be done in a public place which would cause offense to members of the public.
Thus the matter here for decision is not whether the state can prohibit public nudity, but whether it can prohibit the private, secluded, unobtrusive practice of nudism, without a clear showing that such nudism improperly encroaches upon some other legally protected right.
In order to constitutionally prohibit group association for private action there must be established a strong present public need for such prohibition. Griswold v. State of Conn., supra. In other, words, to invalidate the Tennessee Nudist statute there must appear a cause “which is sufficient to justify the deterrent effect .. . . [upon] the free exercise by the petitioner’s members of their constitutional rights of association.” See American Communications Ass’n v. Douds, 339 U.S. 382, 445, 70 S.Ct. 674, 94 L.Ed. 925; Schneider v. State of New Jersey, 308 U.S. 147, 161, 164, 60 S.Ct. 146, 84 L.Ed. 155. “Such a ‘. . . sub*850ordinating interest of the State must be compelling.’ Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311, 1332 (concurring opinion).”
There is nothing in the record to indicate directly or by inference that any nudist colony or member thereof is the source of any injury whatever to the public welfare, health or morals. To the contrary, the proof in the record asserts that the prime purpose of the nudist movement is to promote health of the body and mind. It would appear that almost all nudist groups base their very cause of existence entirely upon hygienic purposes. A statement of the basic rationale of nudism may be found in vol. 16, pages 594-594A, Encyclopedia Britannica, Wm. Benton Pub., 1962.
There is nothing in the proof whatever to indicate that nudism is other than an idiosyncratic, though innocous, practice which engenders no harm or danger either to its members or society in general. In view of the fact that it lies uncontro-verted in the record that the aim of nudists and nudist colonies is simply to indulge in amicable association with the purpose in view to promote physical and mental health, I can come to no other conclusion but that nudists have a constitutional right to practice their beliefs in the manner heretofore indicated.
It is my thought that the Tennessee Nudism statute prohibits the practice of nudism in clear and understandable language. However, I conclude that the freedom of association and the right of privacy are each constitutional rights, which, for the purposes of this investigation, are absorbed by the Fourteenth Amendment.
Applying these principles to the validity of the Tennessee Public Act, Chapter 176 (Section 39-3009 TCA), result in the conclusion that this legislation is unconstitutional as violating substantive due process.
Moreover, if it should be that all the Justices of the Supreme Court are not in agreement upon the proposition that the right of privacy is constitutionally protected then it would seem that this principle of law would apply: Certainly the right of privacy is a well established fundamental right of individuals or groups which cannot be disturbed by the Federal or state government by reason of the provisions of the Ninth Amendment specifically reserving such rights to the people. Justice Goldberg for himself, the Chief Justice and Justice Brennan in Griswold, et al. v. State of Conn., supra.
While I believe that what has been said is sufficient to establish that this state statute is unconstitutional, I am inclined to think that this statute works a discrimination against nudist colonies and their members under “the equal protection of the laws” provision of the Fourteenth Amendment, as it would seem that the nudist cults would be protected in the right to assemble and follow their practices in the manner they do, as other organizations do, such as NAACP.
Therefore, I concur in the results reached in the majority opinion.
ADDENDUM
“Lest I be heralded as the patron saint of nudism” (see vol. 51, No. 6, ABA Journal, page 564), let me add this hasty remark: The wiles and lures of that most peculiar cult completely elude me. It seems in fact something of a mystery why those who engage in its strange practices are willing to suffer both the stings of outraged public opinion and voracious, ravenous insects in order to pursue its illusory rewards. To my personal way of thinking the theories of nudism are not only foolish but down right distasteful and indelicate. But as such theories play no legitimate part in a judicial opinion, I shall call all personal remarks short, simply stating that in our triune form of government it is the particular duty of the judiciary to protect individuals and minorities in their constitutional rights even though their beliefs and activities may be heretical or unpopular.
. “Time Magazine, 80; 25, S 7, 62.!