dissenting.
Steven Schochet was sentenced to five years in prison because, on the evening of October 3, 1986, he engaged in an act of fellatio with Dovie Sullivan. It seems apparent from this record that Mr. Schochet and Ms. Sullivan were competent adults, that the act occurred in the privacy of Ms. Sullivan’s apartment, that they were alone at the time *354—Ms. Sullivan’s daughter being asleep in another room— and that the act was part of a broader range of sexual conduct between the parties, including vaginal intercourse, that the jury implicitly found was freely and voluntarily engaged in by Ms. Sullivan.1
In a precise and scholarly Opinion, the panel majority sees nothing unconstitutional about Mr. Schochet being sentenced to prison for engaging in that act under that circumstance. I do.
There is much in Judge Moylan’s Opinion with which I agree. I agree, for example, that:
(1) the United States Supreme Court has recently made clear (in a 5-4 decision) that there is no Federal Constitutional right to engage in homosexual conduct that is proscribed by State law;
(2) that Court has strongly implied, but never squarely held, that it would be an impermissible invasion of a Constitutionally protected right of privacy for the Legislature to criminalize this kind of activity when engaged in by a married couple in private, shielded from any reasonable prospect of public view; and
(3) neither the Supreme Court nor the Maryland Court of Appeals has yet given a clear, definitive indication of whether any such right of privacy applicable to married couples would also apply to a competent, adult, heterosexual, un*355married couple when engaging in this activity under similar circumstances.
There is, in other words, a lack of controlling precedent in this State clearly mandating one result or the other in this case.
The panel majority, recognizing this void, opts for affirmance, seemingly on two grounds: one, that the statute proscribing this conduct, even when undertaken by married couples, is presumptively valid; and two, unless and until the Supreme Court clearly directs otherwise, we ought not to overturn the statute but should defer instead to the Legislature.
I have no quarrel with either of those propositions, as general statements of principle. But they necessarily must yield to an even greater imperative. John Marshall expressed the point so well in Marbury v. Madison, 1 Cranch 137, 177-78, 5 L.Ed. 60, 73-74 (1803):
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts *356must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions.”
That authority—that obligation—is not limited to the Supreme Court. It is equally the duty of any court of competent jurisdiction and has been so regarded throughout most of our national history. We have never shied from declaring presumptively valid laws unconstitutional, when the conflict seems clear, merely because no higher court had previously done so. We look at the statute and we look at the Constitution, and, if the one appears to us to be repugnant to the other, we declare it so and give effect to the higher, controlling provision. We obviously may not exercise this authority capriciously; we are constrained to give due deference to the Legislature and to sustain its enactments unless their repugnancy to the Constitution is clear. But when that repugnancy is clear—clear to us—we have no choice, if we are to remain true to our own oaths of office, other than to strike down the offending enactment.
The majority recognizes that there is a Constitutionally-based right of privacy, notwithstanding the lack of any mention of such a right in the Constitution itself. The issue is whether this kind of activity falls within it. Judge Moylan reviews in depth and in some detail pronouncements from the Justices of the Supreme Court since Poe v. Ullman, concluding from some grand matrix of all their sayings that this activity is probably not protected, at least when carried on by unmarried couples. What the majority, in effect, has done is to take a frozen slice of Constitutional history, from 1965 to 1987, and to assume that this steadily emerging Constitutional principle will develop no further. That is a nice conservative view, but it is unrealistic, because it leaves a most fundamental legal principle in a state of absolute illogic.
The problem, essentially, is an analytical one; on what basis, by what standard, should the law decide which of the several kinds of intensely personal relationships, activity, *357and expression that people have or engage in is to be shielded from discretionary governmental intrusion and interference? The majority, following a sort of ad hoc development in the Supreme Court, parcels this out on the basis of whether the relationship, activity, or expression in question is included within this somewhat ill-defined and contourless zone of privacy. Inclusion means it is shielded; exclusion means it is not; it is a sort of “all or nothing” proposition. I suggest a somewhat different framework of analysis, one that finds equal support in Supreme Court case law.
My thesis, as it would apply in this case, is as follows. I believe (1) that there is a Constitutionally protected zone of privacy, ill-defined perhaps but nonetheless existing, that shields certain fundamental personal conduct and expression from substantial governmental interference; (2) that the conduct at issue here, when engaged in under the circumstances noted, falls within that zone of privacy; (3) that, although inclusion within this zone does not necessarily endow an activity with total immunity from governmental interference, it does require that the government show a strong and compelling justification for the interference; and (4) that no such showing has been made here.
Unlike the majority, I do not believe that the Constitutional right of privacy was born in 1965 or that its parents were Estelle Griswold and the State of Connecticut. It has antecedents in Socrates, Cicero, Rousseau, and Locke, among many others; it is given expression throughout the Declaration of Independence, and indeed the systematic violation of it by Parliament and its agents was a major cause of the Revolution. But even putting all that aside, the Supreme Court itself has seemingly recognized a more distant root. In Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973), the Court, through Justice Blackmun, observed that while “[t]he Constitution does not explicitly mention any right of privacy ... [i]n a line of decisions ... going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 100, 1001, 35 *358L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy does exist under the Constitution.”
In 1928, Justice Brandéis, repeating sentiments that he and Samuel D. Warren had expressed 38 years earlier, wrote:
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized man.”
That passage, written in dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928), was quoted, verbatim, by the majority in Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247-48, 22 L.Ed.2d 542 (1969), for the proposition that “also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.”
The majority, of course, does not deny the existence of this right of privacy. I delve a bit into its history only to illustrate that it was not something capriciously pulled out of the air by Justices Harlan and Douglas but has a much deeper meaning and tradition. That is significant, I suggest, in determining its scope.
I freely acknowledge that this right of privacy is not well defined; neither, of course, is “due process of law” or “unreasonable searches and seizures” or “cruel and unusual punishments.” These are broad concepts that take their meaning not just from a frozen slice of history but from contemporary social mores and institutions. Changed *359perceptions of what is acceptable does have Constitutional significance. Public flogging was once permitted, as was hanging for felonies other than murder; it no longer is, Constitutionally. As Justice Frankfurter commented in National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646, 69 S.Ct. 1173, 1195-96, 93 L.Ed. 1556 (1949) (in dissent): “Great concepts like ... ‘liberty’ ... were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.”
This notion would seem as applicable to public attitudes about sexual contact between men and women as to any other aspect of our social fabric.
Throughout history, the subject of sex—i.e., sexual contact and intercourse—has been shrouded in hushed tones and mystery, encrusted with ecclesiastical armor. The whole thrust of society, usually led by old men, has been to place barriers of one kind or another on the expression of this most basic function of all living things, including people. To the extent that these barriers were intended to promote, protect, exalt, and preserve the institution of marriage and with it the nuclear family, they obviously had a significant and useful societal, economic, and therefore political purpose and could reasonably be regarded as within the proper purview of government, even one founded upon notions of social contract, as ours was. But if and to the extent they have no such connection or cease to have any such connection, and simply regulate this kind of very personal conduct for no apparent reason, the question of authority is legitimately raised.
The Supreme Court has, I concede, moved haltingly in this area, and properly so. It is not a legislative body; nor is it a Constitutional Convention permanently in session. But it has recognized that certain aspects of sexual relations between men and women are immune from governmental intrusion, absent some compelling, rational basis for *360the intrusion. And despite the ardent wishes of the majority, the Court has not limited this protection to married couples, and it has not limited it merely to decisions regarding procreation. See Roe v. Wade, supra.
Justice Douglas asked in Griswold, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” and then answered the question, “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” 381 U.S. at 485-86, 85 S.Ct. at 1682.2 What makes intimate sexual contact between men and women less private because they are not married to one another? What makes the intrusion into the bedroom less repulsive because the occupants are not husband and wife? What makes it less repulsive if the object of the search is not contraceptives but the form of sexual expression?
Sexual activity involves a use of one’s body and an expression of one’s feelings, both of which have found at least limited protection in the Constitution. Whatever the perimeter or contours of the zone of privacy—the fenced-in area from which a prying government should be largely excluded—may be, I fail to see how this kind of conduct could not be regarded as included within it.
*361Under my thesis, that would not end the inquiry. The Court made clear in Roe v. Wade that rights of this type are not absolute or unqualified but “must be considered against important state interests in regulation.” 410 U.S. at 154, 93 S.Ct. at 727. But, as the Court noted further, “[w]here certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’ ... and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.” Id., 155, 93 S.Ct. at 728.
What are the State interests at stake here? None are mentioned by the majority. Is there a public health issue? None has been identified. Does this prohibition in any way protect, enhance, or preserve the institution of marriage or the family unit? We are not told how. Does the proscribed conduct cause or lead to disruptive or antisocial behavior or otherwise threaten public order? There is no such assertion. Does it interfere with other private rights deserving of protection? No such claim is made. Well, what then is the compelling State interest that justifies sentencing Mr. Schochet to prison?
The only ground asserted for this kind of criminal sanction is some vague notion of public morality, some unarticulated need to punish acts that the Legislature once regarded as “unnatural or perverted” and that the majority holds to be “unorthodox.” So let us explore that for a moment. Public morality may be a valid basis for regulation. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). But there has to be some evidence of what that public morality is; the term itself cannot supply the fact.
The fact is that public morality, to the extent documented, condones rather than condemns this activity, and the degree of condonation has not only dramatically increased over the past 40 years but is approaching universality, at least among married couples. The conduct, in other words, is no longer regarded by the people as unnatural, or per*362verted, or unorthodox.3
The majority, apparently, views this as a matter for the Legislature alone to consider; but I submit that, if the only asserted basis for a criminal statute is a perception of public morality, it is a matter for the courts as well. To hold otherwise would be to allow the power, under the guise of protecting public morality, to impose criminal sanctions on masturbation and all variety of non-coital sexual contact, even down to kissing and hand-holding, when carried on by consenting adults in private. Would the majority commit that authority too to the State Legislature? If not, why not?
I think it clear that this law, as applied to adult, consenting, competent heterosexual couples who engage in this activity under the circumstances evident in this case, abridges fundamental liberties protected by the Constitution and is therefore, to that extent, invalid.4 I am not *363alone in that view.5
As a final note, I would point out that, as the Constitutional right of privacy now seems clearly to rest upon the “due process” clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution, it would, in this State, rest as well on Md. Declaration of Rights, art. 24, which has consistently been interpreted by the Court of Appeals as the equivalent of the Federal due process clauses. See Lodowski v. State, 307 Md. 233, 248-49, 513 A.2d 299 (1986). To avoid unduly alarming the panel majority, I hasten to add that, as Lodowski makes clear, art. 24 is no broader than the Federal due process rights, and I therefore do not suggest (and indeed would oppose) grounding this right solely on the State Constitution. The two provisions should continue to be regarded as synonymous. Thus, if the activity is protected under the Federal Constitution, as I believe it is, it is also protected under the State Constitution.
. Technically, of course, the jury’s verdicts establish no more than that it had a reasonable doubt (1) as to whether the alleged anal intercourse occurred at all and (2) whether any of the acts, other than the fellatio, were committed (i) with force and (ii) without Ms. Sullivan’s consent. In terms of the issue before us, however, whether the jury simply entertained a reasonable doubt or affirmatively believed that Ms. Sullivan consented to whatever occurred is of little moment. No greater evidence of force or lack of consent was presented with respect to the fellatio than with respect to the other acts, and so one might quite reasonably suppose that, if the jury had been apprised that consent was a valid defense to the charge based on the fellatio, appellant would have been acquitted of that offense as well. Indeed, if one accepts Mr. Schochet’s version of the event, as the jury apparently did, Ms. Sullivan actually instigated the act of fellatio.
. Some—perhaps even Justice Douglas—may have regarded this rhetorical exchange as a bit of hyperbole when written 23 years ago. Who indeed would envision the police snooping into marital bedrooms? See Ricks v. State, 312 Md. 11, 537 A.2d 612 (1988), where, two months ago, a unanimous Court of Appeals (affirming this Court) sustained the "non-consensual video surveillance by police of suspected illegal drug activities within a residential apartment in Baltimore City.” Id., 13, 537 A.2d 612. Officers “entered the air ducts of the apartment through the roof, shaved away part of the dry wall and implanted a miniature camera, focused on the dining room of the apartment. After several weeks of observation and twenty-five hours of recorded video tape, a search warrant was issued to search the apartment____” (Emphasis added.) Id., 18, 537 A.2d 612. If the police can install a camera in the dining room, why not in the bedroom? The requisite probable cause is not all that hard to come by. The hyperbole, if that’s what it was, has become a very real possibility.
. In his first report, Sexual Behavior in the Human Male (1948), Alfred Kinsey found that fewer than half of the men interviewed engaged in fellatio or cunnilingus, even during marriage. In the category of highest incidence—married men with 13+ years of education—45.3% performed cunnilingus and 42.7% engaged in fellatio. Five years later, in his Sexual Behavior in the Human Female, Kinsey reported that 54% of the married women interviewed had engaged in pre-coital cunnilingus and 49% had engaged in fellatio. See also P. Gebhard and A. Johnson, The Kinsey Data (1979). In their 1977 Redbook Report on Female Sexuality, C. Tavris and S. Sadd found that 93% of wives responding reported having engaged in cunnilingus and 91% had engaged in fellatio. They concluded from this response that, ‘Today it is clear that if the sexual revolution has occurred anywhere, it is in the practice and acceptance of oral sex. Among people under age twenty-five, it is virtually a universal part of the sexual relationship.”
P. Blumstein and P. Schwartz have reported similar statistics—93% of heterosexual couples had engaged in cunnilingus and 90% had engaged in fellatio. See also W. Masters, V. Johnson, and R. Kolodny, Human Sexuality 393 (1985). Nor is this phenomenon confined to the young. E. Brecher reports in Love, Sex, and Aging 358-59 (1984), that, among people over 50, 49% of women and 56% of men engaged in cunnilingus and 43% of women and 49% of men engaged in fellatio.
. One of the interesting and unique things about the crime, as stated in § 554 is that, when committed in the manner noted here, it is not *363only “victimless,” but the would-be victim is equally guilty of the offense. Whoever places or takes into his or her mouth the sexual organ of another person is guilty. Given the jury verdict in this case, one might wonder why Ms. Sullivan was not also charged with the offense.
. See People v. Onofre, 415 N.E.2d 936 (N.Y.1980), cert. denied 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845 (1981); State v. Pilcher, 242 N.W.2d 348 (Iowa 1976); Post v. State, 715 P.2d 1105 (Okla.Crim. App.), cert. denied — U.S. -, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986); Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974); Commonwealth v. Reilly, 5 Mass.App. 435, 363 N.E.2d 1126 (1977); State v. Hill, 166 N.J.Super. 224, 399 A.2d 667 (1978), rev’d on other grounds 170 N.J.Super. 485, 406 A.2d 1334 (App.Div.1979).