dissenting.
The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.
To justify its view that private homosexual conduct is protected by the Constitution of Kentucky, the majority has found it necessary to disregard virtually all of recorded history, the teachings of the religions most influential on Western Civilization1, the debates of the delegates to the Constitutional Convention, and the text of the Constitution itself. Rather than amounting to a decision based upon precedent as is suggested, this decision reflects the value judgment of the majority and its view that public law has no right to prohibit the conduct at issue here.
The majority concedes that “ ‘proscriptions against that conduct [sodomy] have ancient roots.’ 478 U.S. at 192 [106 S.Ct. at 2844].” It fails, however, to describe the depth of such roots as was done in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986):
“Sodomy was a criminal offense at common law which was forbidden by the laws of the original 13 States when they ratified the Bill of Rights.” 478 U.S. at 192, 106 S.Ct. at 2844.
In his concurring opinion in Bowers, Chief Justice Burger elaborated upon the historical condemnation of sodomy as follows;
“Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western Civilization. Condemnation of those practices is firmly rooted in Ju-deao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. During the English Reformation when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. *504Blackstone described ‘the infamous crime against nature’ as an offense of ‘deeper malignity’ than rape, a heinous act ‘the very mention of which is a disgrace to human nature’ and ‘a crime not fit to be named.’ ... To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” 478 U.S. at 196-197,106 S.Ct. at 2846-47.
(Citations omitted.)
The history and traditions of this Commonwealth are fully in accord with the Biblical, historical and common law view. Since at least 1860, sodomy has been a criminal offense in Kentucky and this fact was well known to the delegates at the time of the 1890 Constitutional Convention.
Embracing “state constitutionalism,” a practice in vogue among many state courts as a means of rejecting the leadership of the Supreme Court of the United States, the majority has declared its independence from even the influence of this nation’s highest court. The majority cannot, however, escape the logic and scholarship of Bowers which reached the conclusion that nothing in the Due Process Clause of the United States Constitution prevented a state from punishing sodomy as a crime. While I do not advocate the view that state courts should march in lock step with the Supreme Court of the United States, on those occasions when state courts depart from that Court’s reasoned interpretations, it should be for compelling reasons, usually text or tradition, and only in clearly distinguishable circumstances, none of which are present here.
The majority also concedes that the debates of the Kentucky Constitutional Convention of 1890 contain no mention of a right of privacy or a right to engage in homosexual sodomy. It rationalizes this fact by indicating that the concept was not articulated until publication of an article by Warren and Brandéis in the Harvard Law Review on December 15, 1890. According to the majority, the delegates to the Constitutional Convention intended to create such a right but lacked the verbal skills to devise a phrase so complicated as “right of privacy.” 2 For whatever reason, the debates contain only the most limited and inexplicit reference to any concept which could be translated into privacy.
Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support. The majority has referred generally to the twenty-six sections in the Bill of Rights of the Kentucky Constitution and quoted § 1 First and Third and § 2. None of the sections cited or quoted contain an inkling of reference to rights of privacy or sexual freedom of any kind. This is conceded by the majority as follows: “No language specifying ‘rights of privacy,’ as such, appears in either the Federal or State Constitution.” The majority opinion is a departure from the accepted methodology of constitutional analysis which requires that text be the beginning point. Kentucky State Board, Etc. v. Rudasill, Ky., 589 S.W.2d 877 (1979). The majority reasons that differences between the text of the Kentucky Constitution and the United States Constitution free this Court from federal influence, but it fails to explain its discovery of the rights announced here in the absence of any textual basis. This is a dangerous practice. When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law. Justice White cautioned against this practice in Bowers v. Hardwick, supra, as follows:
“The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” 478 U.S. at 194, 106 S.Ct. at 2846.
As has been demonstrated, a right of privacy protecting homosexual sodomy between or among consenting adults has no *505basis in the history and traditions of Western culture or in this nation or state. Likewise, the constitutional debates contain only the most oblique references to any right of privacy and Kentucky constitutional text is totally silent. As such, the majority must and does rest its entire case on a line of decisions rendered by this Court in the early twentieth century in which a right of privacy was held to exist with respect to the consumption of alcoholic beverages and the use of tobacco products. The leading decision of this genre is Commonwealth v. Campbell, 133 Ky. 50, 117 S.W. 383 (1909), in which a statute which criminalized the possession of intoxicating liquor for private use was held unconstitutional and which, with rhetorical flourish declared the broadest possible right of privacy.
As the majority relies entirely on the doctrine of stare decisis, brief comment on its use in the context of constitutional interpretation is appropriate. When courts construe statutes or principles of common law, error in such construction is subject to correction by the people through their elected representatives. With constitutional interpretation, however, such correction is not possible. As only the highest court of a jurisdiction possesses power to say finally what the constitution means (save the right of the people to amend it), courts have a duty to continually re-examine their prior constitutional interpretations to prevent perpetuation of error. Thus, the doctrine of stare decisis lacks the vigor in the arena of constitutional law that it possesses in other fields. Harmelin v. Michigan, 501 U.S. -, -, 111 S.Ct. 2680, 2686, 115 L.Ed.2d 836, 846 (1991). A well known exponent of this view was Justice Brandéis, who said:
“The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407-408, 52 S.Ct. [443] 445 [447-48], 76 L.Ed. 815 (1932) (Brandeis, J., dissenting).
The fact that this Court broadly declared a right of privacy prior to World War I in cases which one suspects were influenced by local economic forces does not mean that such a doctrine should be applied in the extreme nearly a century later to a moral question not remotely considered by the Campbell court.
The major premise in the majority opinion is that the Constitution forbids any legal restriction upon the private conduct of adults unless it can be shown that such conduct is harmful to another. This view represents the essence of the philosophy of John Stuart Mill in his essay On Liberty. While espousing such a view, however, Mill recognized the difficulty of distinguishing that part of a person's life which affected only himself from that which affected others. He recognized that one who by deleterious vices harmed himself indirectly harmed others and that society suffered indirect harm by the mere knowledge of immoral conduct. Nevertheless, Mill clung to his philosophy by insisting that society was without power to punish gambling or drunkenness. He made a ringing defense of the right of persons so disposed to practice polygamy.
While the philosophy of John Stuart Mill as adopted by this Court in Campbell v. Commonwealth, supra, exalts individuality in the extreme, it has, nevertheless, a superficial appeal. It rejects majoritarian morality as a basis for law and imposes legal limits on the conduct of man only insofar as it may harm others. Unfortunately for the purposes of the majority, the philosophy of Mill and the views contained in the Campbell case, if logically applied, would necessarily result in the eradication of numerous other criminal statutes. For example, if majoritarian morality is without a role in the formulation of criminal law and the only standard is harm to another, all laws proscribing the possession and use of dangerous or narcotic drugs would fall. Likewise, incest statutes which proscribe sexual intercourse between persons of close kinship regardless of age or consent would be rendered invalid. Laws prohibiting cruelty to animals, the abuse of dead human bodies, suicide and polygamy would *506be held unconstitutional. Despite the majority’s disingenuous departure from Mill based on “an enlightened paternalism” to prevent self-inflicted harm, many prevailing criminal statutes would nevertheless fail the “harm to another” test. While the majority of this Court manifestly sees the proposition otherwise, the Supreme Court of the United States has addressed the role of morality as a rationale to support criminal law and found no impediment.
“The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” Bowers, supra, 478 U.S. at 196, 106 S.Ct. at 2846.
The majority has characterized Kentucky’s highest Court of the early twentieth century as being “in the forefront in recognizing the right of privacy.” It has quoted laudable phrases such as “ ‘[t]he fundamental rights of personal security and personal liberty, include the right of privacy, the right to be left alone.... The right to enjoy life in the way most agreeable and pleasant....’” It has created an impression that this Court of that era was filled with enlightened jurists who sought to elevate mankind. Unfortunately, there is a darker side to this Court’s past as evidenced by a decision rendered just three years prior to the Campbell case. In Berea College v. Commonwealth, 123 Ky. 209, 94 S.W. 623 (1906), Judge O’Rear, writing for this Court, enthusiastically upheld the constitutionality of a statute which prohibited “white and colored persons from attending the same school.” The Court said:
“The natural separation of the races is therefore an undeniable fact, and all social organizations which lead to their amalgamation are repugnant to the law of nature. From social amalgamation it is but a step to illicit intercourse, and but another to intermarriage.... When, therefore, we declare a right to maintain separate relations, so far as is reasonably practicable, but in a spirit of kindness and charity, and with due regard to equality of rights, it is not prejudice, nor caste, nor injustice of any kind, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts.” Id. at 94 S.W. 628.
A cursory reading of Berea College v. Commonwealth will convincingly dispel any notion of social enlightenment on the part of this Court’s justices during the first decade of the twentieth century.
The majority opinion relies on the supposed “direct, firsthand knowledge of the mind set of the constitutional fathers” possessed by this Court’s justices of the early twentieth century. The views expressed in Commonwealth v. Campbell and other decisions of its era are presented as amounting to a contemporaneous construction of the Constitution. The majority has also cited Commonwealth v. Poindexter, 133 Ky. 720, 118 S.W. 943 (1909), and disclosed that in 1909 it affirmed the dismissal of a sodomy indictment. What the majority failed to say about the Poindexter case is that the indictment was dismissed because the facts alleged did not constitute a crime as the statute was then written. Notably absent from the majority’s discussion of Poindexter is any disclosure of the Court’s view of the act of sodomy. Whatever “rich and compelling tradition of recognizing and protecting individual rights” the Court may have had, it did not recognize a right to engage in sodomy. The Poindexter court said:
“We must confess that we are unable to see what the act [the insertion of the private part of one into the mouth of the other and thereby producing an emission] with which appellees stand charged is not as much a crime against nature as if done in the manner sodomy is usually committed; but as the only authorities we have been able to discover decide otherwise, we regard it our duty to follow precedent, and for this reason alone we hold that the circuit court properly held the indictment bad, and dismissed it. It is to be hoped, however, that the Legislature will by proper enactment make such an infamous act as that of which appellees confess themselves *507guilty a felony and punishable as such.” Id. 118 S.W. at 944. (Emphasis added.)
It would be fanciful to suggest that the Court viewed such conduct as constitutionally protected. The majority has urged contemporaneous construction as indicative of delegates’ intent. If this be so, Commonwealth v. Poindexter is dispositive.
This dissenting opinion, as it relates to a “right of privacy” under the Constitution of Kentucky could be concluded without further elaboration. As heretofore demonstrated, neither the text nor the Constitutional Debates nor the history and traditions of this Commonwealth provide any basis for concluding that there is a right of privacy so broadly defined as to protect homosexual conduct. Nevertheless, the majority has discovered such a right in this Court’s prior decisions. An examination of the cases upon which it relies reveals that the Court used privacy as a means of protecting the right of persons to possess and use intoxicating liquor3, smoke cigarettes, seek compensation for tortious invasion of privacy, and prevent public disclosure of private facts. In eaeh case, the conduct or interest protected on privacy grounds was deeply entrenched in this Commonwealth’s history and traditions. I do not regard these decisions as aberrational, but merely overstated. It was hardly necessary to call upon the writings of John Stuart Mill to justify protection of the right of Kentuckians to drink liquor and smoke cigarettes.
To the extent the majority and appellee rely upon the privacy cases of Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Court in Bowers answered
"... [We] think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy_ No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated....” 478 U.S. at 190-191, 106 S.Ct. at 2843-44.
From my study of this case, I have concluded that the privacy right found in the Constitution of Kentucky does not apply to claimed rights not remotely envisioned by the delegates to the Constitutional Convention or reasonably emerging from our history and traditions. As such, the right to determine whether sodomy should be a criminal offense belongs to the people through their elected representatives. We should not deprive the people of that right. As the majority has observed, many states have already decriminalized consensual sodomy.4 Appellee should take his case to the Kentucky General Assembly and let that branch of government say whether the crime shall remain or be abolished.
To resolve the equal protection issue, one must first review the statute, KRS 510.100. This Act is not limited in its application to persons who consider themselves homosexual nor is it limited to the male or female gender. Any person who engages in deviate sexual intercourse with another person of the same sex is in violation. The statute *508prohibits conduct and says nothing of the sexual preference or gender of the violator. The United States Court of Appeals for the Fifth Circuit found this dispositive in upholding a Texas anti-sodomy statute.
“The statute is directed at certain conduct, not at a class of people. Though the conduct be the desire of the bisexually and homosexually inclined, there is no necessity that they engage in it. The statute affects only those who choose to act in the manner proscribed.” Baker v. Wade, 774 F.2d 1285, 1287 (5th Cir.1985), cert. denied 478 U.S. 1022, 106 S.Ct. 3837, 92 L.Ed.2d 742 (1986).
There is nothing in the statute by which persons are classified and certainly nothing which accords unequal treatment to persons comprising a recognizable class on factors such as race, gender or ethnic origin. Burlington Northern Railroad Co. v. Ford, 504 U.S.-, 112 S.Ct. 2184, 119 L.Ed.2d 432 (1992).
The heart of the majority contention is that unequal treatment results when the same conduct is deemed criminal if committed by persons of the same sex, but not if the actors are of different sexes. It correctly observes that in former times all sexual contact between unmarried persons was viewed as immoral. From this the majority concludes the statute must be im validated.
In Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), The Supreme Court addressed this contention:
“The Equal Protection Clause directs that ‘all persons similarly circumstanced shall be treated alike.’ But so too, ‘[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.’ The initial discretion to determine what is ‘different’ and which is ‘the same’ resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Id., 457 U.S. at 216, 102 S.Ct. at 2394. (Citations omitted.)
As- to classifications, this Court held in Delta Air Lines, Inc. v. Commonwealth, Revenue Cabinet, Ky., 689 S.W.2d 14 (1985), that the standards are the same under the Kentucky Constitution and the Fourteenth Amendment to the United States Constitution. The opinion also held that
“The Legislature has a great freedom of classification and the presumption of validity can be overcome only by the most explicit demonstration that it is hostile and oppressive against particular persons and classes.” Id. at 18.
As persons who engage in homosexual sodomy have never been held to constitute a suspect classification5, to be upheld, the statute at issue need only satisfy the lowest level of judicial scrutiny and demonstrate that it bears a rational relationship to a legitimate legislative objective. Protection of public “health, safety and morality” was held to be such an objective in Bosworth v. City of Lexington, 277 Ky. 90, *509125 S.W.2d 995, 1000 (1930). This objective found new vitality with the emergence of the AIDS epidemic which indisputably originated in this country in the homosexual community. Moreover, Bowers v. Hardwick, supra, held forthrightly that the rational basis standard was satisfied by majority sentiments as to the immorality of homosexuality. Id., 478 U.S. at 196, 106 S.Ct. at 2846.
In final analysis, the question is whether a rational distinction may be drawn between acts of sodomy committed by heterosexuals and homosexuals. As cases such as Griswold v. Connecticut, supra, Eisenstadt v. Baird, supra, Loving v. Virginia, supra, and Roe v. Wade, supra, demonstrate, there is a heightened protection of the right of persons with respect to conduct in the context of marriage, procreation, contraception, family relationships, and child rearing and education. As such considerations °are without any application as to acts of homosexual sodomy, the distinction is manifest.
“We do not condone the immorality of such activity,” says the majority. Despite this statement, it should not be doubted that this decision will be regarded as the imprimatur of Kentucky’s highest court upon homosexual conduct. The moral opprobrium of the majority will be lost and the popular perception will be that if the Constitution protects such conduct, it must be okay. While this is not an accurate line of thought, it is a natural one. Those who wish to urge that homosexual conduct is immoral and those who oppose the portrayal of homosexuality as an acceptable alternative lifestyle will encounter the majority opinion as a powerful argument to the contrary. Cf, Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey, — U.S.-, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Scalia, J. dissenting).
I conclude with the view that this Court has strayed from its role of interpreting the Constitution and undertaken to make social policy. This decision is a vast extension of judicial power by which four Justices of this Court have overridden the will of the Legislative and Executive branches of Kentucky State Government and denied the people any say in this important.social issue. No decision cited by the majority has ever gone so far and certainly none comes to mind. Where this slippery slope may lead is anybody’s guess, but the ramifications of this decision will surely be profound.
For these reasons, I dissent.
REYNOLDS, J., joins in this dissenting opinion.. Leviticus 20:13; Romans 1:26-27.
. The view of the majority is particularly curious since this Court said in Kentucky State Board, Etc. v. Rudasill, Ky., 589 S.W.2d 877, 880 (1979), that "[i]t is generally recognized that the convention of 1890 was comprised of competent and educated delegates who were sincerely concerned with individual liberties."
. The majority contends that in Board of Trustees of town of New Castle v. Scott, 125 Ky. 545, 101 S.W. 944 (1907), "Chief Justice O'Rear passionately attacked the evil of alcohol" and "notwithstanding their strong views that drinking was immoral the Court upheld the right of possession and consumption on privacy grounds. After a painstaking perusal of the Scott case, I am unable to find anything which indicates a view that drinking was immoral or that alcohol was attacked as evil. The Scott case attacked the practice of trafficking in alcohol and upheld a statute which permitted local regulation. A major premise in the majority opinion, that despite strong personal views on the evils of alcohol, the Court upheld the right to possess and use it on privacy grounds, is thus invalidated.
. According to the majority, since 1961, twenty-five states have decriminalized consensual sodomy. Of these, only the states of New York and Pennsylvania have accomplished this by high court decision. Presumably, the remainder have done so by legislative enactment. As such, the "moving stream” referred to by the majority appears to be legislative rather than judicial.
. The majority relies upon the views of Professor Laurence H. Tribe in American Constitutional Law, 2d ed. 1988, for its contention that homosexuals satisfy the criteria for suspect classification "as subjects of age-old discrimination and disapproval, homosexuals form virtually a discrete and insular minority.” Professor Tribe’s objectivity is doubtful since he represented respondent Hardwick in the Supreme Court of the United States. No doubt, Tribe's argument quoted in the majority opinion was made in the Supreme Court and rejected.
As to Watkins v. U.S. Army, 875 F.2d 699 (9th Cir.1989), the quoted portion in the majority opinion is from a concurring opinion in which only two judges joined. The court, sitting en banc, consisted of eleven judges, and a majority decided the case on grounds of administrative law and estoppel and did not reach any constitutional issue. The Watkins quotation in this Court’s majority opinion is not authority as it does not appear in that court’s majority opinion.