dissenting.
I strongly dissent from the majority opinion because it totally misstates the case and proceeds to attack a statute that is not the direct subject of the criminal charge originally made in this case.
The majority opinion asserts that this is a case about privacy and yet it completely ignores that the criminal act for which the defendant was charged was a proposition made to a total stranger on a public street in downtown Lexington, Kentucky. Under such circumstances, there is no reasonable expectation of privacy.
Wasson solicited an undercover Lexington policeman in a parking lot in the Quality Street area to engage in deviate sexual intercourse. The charge against him was the solicitation to commit a criminal offense pursuant to K.R.S. 506.030. Solicitation to commit any crime on a public street in Lexington is simply not a private matter.
The majority opinion quickly departs from the solicitation aspect of the case, claiming it was not preserved, to something it prefers, the privacy issue, which it invented especially for this case.
The majority opinion lacks balance. It recognizes only one aspect of the equation of privacy. Every person is entitled to privacy to the degree that it does not invade the privacy of any other person. For every right there must be a corresponding responsibility. Here, we have a clear clash of rights. The public in general has a right to be free of solicitation from criminal acts and every individual has a right to conduct his or her own affairs.
*510Courts should not intrude on the individual affairs of any person except to decide matters which are squarely before them. Anything else is strictly an advisory opinion. In addition anything else is still another unwarranted invasion of government in the form of an all-knowing judiciary in the individual affairs of the total community. Judicial time is very precious and there is no reason that this Court should be seeking problems to solve which we make on our own initiative. Apparently the majority opinion could not wait for a proper case but it had to jump into the controversy in order to proclaim its view on the discovery of privacy in Kentucky.
The major premise of the majority opinion is fatally flawed. By any stretch of legal logic, the court should consider the exact charge filed and not create an issue where none exists. Rights may be freely enjoyed and exercised only limited by the degree to which they invade the rights of others to enjoy and exercise their own individual rights. When rights collide in the public arena, a balance must be achieved.
I. Privacy
Privacy is a marvelous concept but it has been totally distorted by the majority opinion. It is ironic that in the rambling rhetoric of over 9,000 words, the majority opinion blithely tramples on the rights of the majority of the public.
The precise charge here is that there is violation of K.R.S. 510.100, fourth-degree sodomy. The charge involves solicitation rather than the consummation of fourth-degree sodomy. The arrest occurred in 1985 when Wasson was apprehended along with four other individuals. His counsel moved the district court to dismiss the charge on constitutional grounds and asked the court to hold his motion in abeyance until the United States Supreme Court could decide what is now known as Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). Counsel noted in his motion that the Georgia sodomy statute being considered in Bowers, supra, was remarkably similar and that the forthcoming decision in that case would “most likely be determinative” of his challenge to the Kentucky sodomy statute. When the Bowers decision was released, and it was adverse to the position of the defendant here, he filed a second motion to dismiss and raised questions regarding Sections 2 and 17 of the Kentucky Constitution as well as the Eighth Amendment to the Federal Constitution. His counsel explained that the grounds for his challenge included the right to privacy under the Kentucky Constitution, equal protection and freedom from cruel and unusual punishment.
Fayette District Judge Lewis Paisley refused to allow the county attorney to introduce any treatises on the subject of sodomy. A motion for separation of the defense witnesses was also denied. Seven witnesses testified for the defense. Later, Fayette Circuit Judge Charles M. Tackett affirmed the dismissal of the case on the constitutional grounds of privacy and equal protection. Judge Tackett expressed the opinion that the sexual acts performed by consenting adult homosexuals are necessary for them to enjoy a full and satisfying sexual life.
Although the question of privacy was decided by the majority opinion under Kentucky constitutional provisions, the views of the United States Supreme Court on that question are highly persuasive to anyone who approaches this subject with an intelligent attitude of open-mindedness. The U.S. Supreme Court has determined that the practice of homosexual sodomy is not a right protected by the Federal Constitution. The practice is prohibited in approximately 25 states in the United States and it could hardly be said that there is a consensus that sodomy is a right protected by privacy. There is no evidence that the framers of the Kentucky Constitution intended to confer a greater right to privacy than was already provided by the U.S. Constitution. The debates of the 1890 Constitutional Convention do not suggest any such intent. Consensual homosexual sodomy was outlawed prior to the adoption of the present Kentucky Constitution. Application of the majority opinion will generate a tremendous amount of litigation in other criminal areas and would call into question the va*511lidity of existing statutes and case law dealing with search and seizure questions on the basis of a newly found right to privacy.
The fourth-degree sodomy statute clearly punishes conduct and not a class of people. Obviously, it is an individual’s conduct that is the subject of the legislation, and it is the individuals who break the law who are specifically punished. The statute applies to any person regardless of sexual orientation. Homosexuals are not a constitutionally recognizable class for the purposes of an equal protection argument. The standard for determining whether a cognizable class exists consists of immutable characteristics uniformly shared by all class members, who because of such distinctive traits, are given special treatment by the law. Examples of such traits are race, gender and national origin. Sexual preference is not included.
The record in this case contains undisputed testimony by experts presented by the defendant that homosexuals are more promiscuous than heterosexuals; that infectious diseases are more readily transmitted by anal sodomy than by any other form of sexual copulation; and that homosexuals account for 73 percent of all AIDS cases in this country. Clearly the interest of all Kentuckians in protecting public health, safety and morals are at issue. The necessity for controlling such behavior prevails over any equal protection challenge.
This Court is mistaken in determining that the fourth-degree sodomy statute violates a person’s right to privacy under the Kentucky Constitution. The Kentucky Constitution as well as the Federal Constitution, does not specifically address the right of privacy. The U.S. Supreme Court has held that certain fundamental rights exist within a zone of privacy implied by the First, Third, Fifth and Ninth Amendments to the Federal Constitution. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The rights granted through these amendments are applicable to the people of Kentucky through the Fourteenth Amendment to the Federal Constitution. The U.S. Supreme Court recognizes some rights as fundamental. Sodomy is not a fundamental right that would be considered implicit in the concept of ordered liberty. Cf. Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). It does not enjoy protection under the Federal Constitution. Bowers.
There is a long history of laws against sodomy in Kentucky and elsewhere. Of course it has been considered morally wrong since the beginning of time, but this is a secular legal question here. The very word “sodomy” is derived from the biblical name of the city of Sodom which was destroyed by God for its perverse behavior. In 1533, it became a statutory crime in England under King Henry VIII. In the early English colonies, laws were enacted against sodomy which punished the crime by death. 26 William & Mary Law Review, p. 645 (1985).
In Bowers, the U.S. Supreme Court, in refusing to extend privacy protection to sodomy reasoned that morality is an acceptable basis for laws against homosexual sodomy and stated that: “The law 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.” It is foolish and fruitless to ignore morality in our society and in our governmental function. Every political decision of consequence reflects a moral judgment. In response to the oft-heard claim that you can’t legislate morality, it needs to be said that legislation is always based on someone’s morality. It is based on someone’s notion of what is right or wrong, just or unjust, fair or unfair. The claim that we cannot legislate morality is a deception intended to exclude from the democratic process those citizens who frankly acknowledge that their motivation is moral in nature. The majority opinion has reached the conclusion that Kentucky Constitution supports a right of privacy that permits consensual sodomy. The majority opinion treats with favor a federal constitutional analysis which proceeds from so-called “emanations” and “penumbras” in its discussion of the First, Third, Fourth and *512Fifth Amendments to the Federal Bill of Rights. “Emanations and penumbras” are more suited to a seance or a psychic experience rather than to a judicial opinion at any level in any court.
The Kentucky cases that the majority opinion bases its discovery of the right of privacy are Commonwealth v. Campbell, 133 Ky. 50, 117 S.W. 383 (1909) which recognizes the right to possess liquor for personal use. Lewis v. Commonwealth, 197 Ky. 449, 247 S.W. 749 (1915) which follows Campbell, supra; Hershberg v. City of Barbourville, 142 Ky. 60, 133 S.W. 985 (1911) which declares a city cigarette ordinance void as being overbroad; Commonwealth v. Smith, 163 Ky. 227, 173 S.W. 340 (1915) which also follows Campbell, and Commonwealth v. Vincent. 282 Ky. 95, 137 S.W.2d 1091 (1940), which involves a wrongful death action and does not mention any provision of the Kentucky Constitution. None of these cases established a sweeping right to privacy under the Kentucky Constitution. For the most part, they address whether the exercise of police power was reasonably necessary to further a legitimate state purpose in a specific context.
The majority opinion seizes upon the Campbell decision and ecstatically embraces the philosophy of John Stewart Mill, an English philosopher of the mid-19th Century. Absolute adoption of the philosophy of Mill is not required by the Kentucky Constitution in any respect. Mill and his disciples express a kind of “anything goes” or laissez faire attitude towards what they construe as individual liberty.
Some scholars have observed that the emerging law of privacy has been based on the proposition that society may properly regulate the behavior of competent adults only if that behavior demonstrably threatens the rights, safety or interest of others. John Stuart Mill declared a maxim that “that the individual is not accountable to society for his actions, insofar as these concern the interest of no person but himself.” A Michigan court has used this Mill philosophy as the basis of a decision invalidating a statute requiring motorcyclists to wear helmets. The Michigan court found that the law was related only to the safety of the motorcyclist and therefore was invalid. Their decisions are based on outdated philosophical premises. If the Mill concept was ever valid, it has been totally overcome by the development of the interconnection of modern society. If Mill’s philosophy that “a man’s conduct affects himself alone” was ever true it was not so today. The English-Irish poet, John Dunne, expressed it marvelously when he wrote:
No man is an island. Ask not for whom the bell tolls, it tolls for you.
No individual is permitted to opt out of any system of comprehensive social legislation even when harm could only come to the individual. If a person lives in society, it is not just the concern of that person whether they can operate a motorcycle safely. The safety of the motorcyclist is directly related to the safety of others using the highway. Contemporary society strongly indicates that the medical bills and the danger to others clearly require precautions that reduce the number of highway accidents.
The influence of John Stuart Mill on the majority opinion requires a careful person to examine the historical background in which Mill developed his philosophies. He is best-known as a teacher of his version of logic. He believed that in order to find the meaning of a proposition, one must first find the meaning of its constituent verbal parts. Some criticize him on the basis of an analysis of meanings derived mainly from the propositional meaning of a word as primary and a meaning of the individual words as derivative. If you apply the Mill concept to liberty, as mere mortals ordinarily understand it, it results in little more than a modern hedonism. Mill was an empiricist. He believed that a proposition is significant only if it describes what has been or could be experienced.
The majority opinion selects Mill’s essay “On Liberty” as its polestar. In that work Mill’s purpose was to persuade that each adult should have a private sphere of individual liberty comprised of any of his acts that do not affect prejudicially the interests of others. Clearly, almost any act that a *513person performs may affect prejudicially the interests of others. Mill argues against what he calls the moral coercion of public opinion in order to enforce any degree of conformity. He does not specifically recognize the conflict between liberty interests among individuals.
Mill lived at a time when the influence of his own father, James Mill, Jeremy Bentham, David Ricardo and John Austin were triumphant in extolling the virtue of the philosophy of utilitarianism. Clearly, his view was rights without any corresponding responsibility. The responsibility of government and specifically the judiciary to balance the rights of individuals when they collide was not effectively discussed by Mill or his followers.
Generally, liberty can be defined as an exception from unnecessary restrictions. The two types of liberty are moral liberty and legal or political liberty.
Moral liberty means the power of a person to make choices about right and wrong or good and evil. In this way, a person can form their own opinions and guide their own conduct. Political or legal liberty is freedom guaranteed by law. It provides the means for each person to become their own master. Political liberty protects the individual from the unnecessary and arbitrary intrusion and power of government.
Utilitarianism maintains that the rightness of an action can be judged on its own contribution to the general welfare and that human pleasure is the only thing good in itself and pain the only thing evil in itself. It is a form of hedonism which was developed by Bentham and others who derived their theories from Hobbs, Locke and Hume.
John Stuart Mill claims that the rightness or wrongness of any individual act is based on its conformity to transient precepts of human conduct, all measured by subjective overall utility.
The reliance of the majority opinion on cases such as Campbell, Smith, Lewis, Hershberg and Vincent is completely misplaced, and the conclusion the majority opinion reaches is strained. Other decisions of this Court in the more modern era indicate an unwillingness to engage in random revision of the Kentucky Constitution by judicial fiat. See Estep v. Commonwealth, Ky., 663 S.W.2d 213 (1983) in which it is held that Section 10 of the Kentucky Constitution provides no greater protection than does the Federal Fourth Amendment; Jordan v. Commonwealth, Ky., 703 S.W.2d 870 (1985) which provides that Section 13 of the Kentucky Constitution affords no greater protection than does the Federal Fifth Amendment; Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986) which indicates that Section 11 of the Kentucky Constitution provides no greater protection than does the Federal Sixth Amendment and Delta Airlines, Inc. v. Commonwealth, Revenue Cabinet, Ky., 689 S.W.2d 14 (1985) which holds that the standards for classification under the Kentucky Constitution are the same as those under the Fourteenth Amendment to the Federal Constitution.
Commonwealth v. Foley, Ky., 798 S.W.2d 947 (1990) provides that Section 1(4) of the Kentucky Constitution gives no more protection than does the Federal First Amendment; fabler v. Wallace, Ky., 704 S.W.2d 179 (1985) notes that Sections 1, 2 and 3 of the Kentucky Constitution suffice to embrace the Equal Protection Clause of the Federal Fourteen Amendment; Cain v. Commonwealth, Ky., 556 S.W.2d 902 (1977) announces that the right of counsel guaranteed by Section 11 of the Kentucky Constitution is no greater than the right of counsel in the Federal Sixth Amendment; Glasson v. Tucker, 477 S.W.2d 168 (1972) holds that Section 1 of the Kentucky Constitution is coterminous with the Federal First Amendment; Ray v. City of Owens-boro, Ky., 415 S.W.2d 77 (1967) states that Section 1(5) of the Kentucky Constitution is coterminous with the Equal Protection Clause of the Federal Fourteenth Amendment. Rawlings v. Butler, Ky., 290 S.W.2d 801 (1956) states that Sections 1 and 5 of the Kentucky Constitution are coterminous with the religious clauses of the Federal First Amendment; Fischer v. Grieb, 272 Ky. 166, 113 S.W.2d 1139 (1938) holds that Section 3 of the Kentucky Con*514stitution is interchangeable with the Equal Protection Clause of the Federal Fourteenth Amendment. Commonwealth v. Ashcraft, Ky.App., 691 S.W.2d 229 (1985) held that the Federal First Amendment actually provided more free speech rights than does the Kentucky Constitution.
Reference by the majority opinion to the debates of the 1890 constitutional convention are distorted. The four-volume, six thousand page set of the debates contains no indication that the framers of the 1891 Kentucky Constitution intended to expand in any way the privacy rights already provided by the Federal Constitution. See Index to the Official Report of the Proceedings and Debates of the Convention, (Legislative Research Commission, June 1989).
The 1890 constitutional convention delegates were undoubtedly well aware of the 1860 Kentucky statute which provided: “Whoever shall be convicted of the crime of sodomy or buggery with man or beast, he shall be confined in the penitentiary for not less than two nor more than five years.” K.R.S. Chapter 28, Art. IV, § 11 (1860). If the drafters of the current Kentucky Constitution in 1890 had been concerned with providing protection for such activities, they certainly would have made some mention of such a desire.
The majority opinion has invented a new fundamental right of consensual sodomy under a claim of discovery of a privacy right. It has clothed it with greater constitutional sanctity. Certainly Kentucky is free to confer greater rights on its citizens, but we must consider that in doing so it is first an obligation or responsibility of the General Assembly to take such action. When we speak of the rights of citizens, we must include all citizens, not just those citizens who are accused of criminal acts. The decent law abiding citizens of Kentucky are entitled to equal protection of the law as well as privacy and such a right must be recognized, not only by the legislature but also this Court. Bowers stated in part that “A reviewing court should strive to assure itself and the public that announcing rights not readily identifiable in the text of a constitution involves much more than the imposition of the justices’ own choice of values.” Here, the majority opinion imposes its choice of values and has completely failed to understand or correctly analyze the constitutional principles upon which it based its choice.
The majority opinion is based on the theory that government may not interfere with those acts done in private that do not adversely affect others. Such a view cannot be applied consistently and neutrally. It can be easily argued that this decision could result in constitutional protection being claimed for the private use of cocaine, consensual incest, suicide and prostitution. Obviously solicitation to commit prostitution is very close to solicitation for deviate sexual intercourse. It is incumbent upon any court to adopt and apply neutral and consistent principles when deciding constitutional issues involving moral and ethical decisions of a general nature which affect all the citizens of a community or state.
Kentucky has already established the standards for deciding state constitutional issues in Kentucky State Board for Elementary and Secondary Education v. Rudasill, Ky., 589 S.W.2d 877 (1979). In that case a four-part criteria was adopted. The Court should examine 1) the text of the constitution; 2) the intent of the framers; 3) a comparison of the state constitutional provision to the federal counterpart and 4) the court must analyze how prior judicial opinions interpreted the constitutional provisions in question. If these factors were applied in the majority opinion, it could not have found a fundamental constitutional right to engage in consensual sodomy.
The people have the right to decide what are constitutional rights and what are not. The people directly elect their legislatures and a sufficient mechanism is provided to amend and add to the Kentucky Constitution.
Any proper respect for the division and separation of powers in the Kentucky system of government recognizes that it is the responsibility of the Kentucky legislature to decide the propriety of criminalizing potential sodomy.
*515I find no authority for this Court to announce a fundamental constitutional right by discovery. In Surrogate Parenting Associates, Inc. v. Commonwealth, Ky., 704 S.W.2d 209 (1986) Justice Leibson, writing for the majority, stated that “Our Kentucky Constitution empowers the legislative branch, but not the judicial branch, of government to articulate public policy regarding health and welfare.” Although •I dissented from that opinion on other grounds, Justice Leibson was right in announcing that policy but is wrong in the majority opinion at this time. Walters v. Bindner, Ky. 435 S.W.2d 464 (1968), stated that the legislature has broad discretion to determine for itself what is harmful to health and morals or what is criminal to public welfare and we will try to refrain from usurping its prerogative.
The United States Supreme Court adopted the same approach in Bowers and at least four other state appellate courts have acknowledged that the legislature should decide as to the criminalization of consensual sodomy. State v. Bateman, 113 Ariz. 107, 547 P.2d 6 (1976); Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973); People v. Ragsdale, 177 Cal.App.2d 676, 2 Cal.Rptr. 640 (1st Dist.1960) and Critchlow v. State, 264 Ind. 458, 346 N.E.2d 591 (1976).
Proscribing sodomy is clearly within the legitimate authority of the police power of the state and this Court should not infringe on that authority. Justice Lewis Powell in a concurring opinion in Zablocki v. Redhail, 434 U.S. 374, 399, 98 S.Ct. 673, 688, 54 L.Ed.2d 618 (1978) stated that the State represents the collective expression of moral aspirations and has an undeniable interest in insuring that its rules reflect the widely held values of its people. Former U.S. Chief Justice Warren Burger in Paris Theatre I v. Slaton, 413 U.S. 49, 59, 93 S.Ct. 2628, 2636, 37 L.Ed.2d 446 (1973), quoting former Chief Justice Earl Warren, Jacobellis v. Ohio, 378 U.S. 184, 199, 84 S.Ct. 1676, 1684,12 L.Ed.2d 793 (1964), said that there is a right of the nation and of the states to maintain a decent society.
Clearly the Court should not usurp the power of the legislature and create or invent fundamental constitutional rights. Such a procedure is not contemplated in any way by the Kentucky Constitution. Any change in the Kentucky sodomy statute must be made the legislature, the duly elected representatives of all the citizens of Kentucky.
It is beyond question that the Kentucky Constitution does not guarantee unlimited privacy in any regard. The state has a rightful concern for the moral welfare of all its citizens and a correct commitment to examining criminal activities wherever they may be committed whether concealed in the home or elsewhere. Cf. Doe v. Commonwealth Atty. for City of Richmond, 403 F.Supp. 1199 (E.D.Va.1975) quoting from Justice John Harlan’s dissent on other grounds in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961).
Kentucky’s fourth-degree sodomy statute is a valid exercise of legitimate police power by the legislature. The constitutional basis of any statute enacted pursuant to the legislative police power is that it appears that the provisions have some substantial tendency to benefit the public or the general welfare. Moore v. Northern Kentucky Independent Food Dealers Assn., 286 Ky. 24, 149 S.W.2d 755 (1941). The benefit to be derived from the enactment of the statute is primarily a question for determination by the legislature and such determination will not be set aside by the courts unless it manifestly appears to be arbitrary or not based upon substantial grounds. Moore, supra.
K.R.S. 510.100 is a constitutionally permissible decision by the Kentucky General Assembly to protect the public and general welfare, it is essentially the kind of statutory enactment that has been recognized by a plurality of the U.S. Supreme Court in Barnes v. Glen Theatre, Inc., 501 U.S. -, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), in a case involving an Indiana statute prohibiting nude dancing. Justice An-tonin Scalia noted in Barnes, supra, that our society prohibits certain activities, not because they harm others but because they *516are considered in the traditional phrase, contra bonos mores, that is, immoral. He notes that in American society such prohibitions have included sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution and sodomy.
The question of public health cannot be ignored in this situation. The contemporary plague of the AIDS virus supports the legitimate exercise of governmental police power by the legislature in banning sodomy. The majority opinion warmly embraces some of the amicus briefs, and condones the testimony of the defendant’s expert witnesses in an effort to diminish the impact of the curse of AIDS in our society.
Based on data available in 1986, defense witness, Dr. Martin Raff, testified that AIDS is more readily transmitted by homosexual activity than by heterosexual behavior because “anal intercourse tends to abrade the mucosa of the rectum” allowing greater transmittance of the virus. Dr. Raff stated that AIDS is primarily a homosexual disease and that 73 percent of all AIDS patients are homosexuals while drug use and prostitution account for most of the AIDS cases among heterosexuals. Dr. Raff also testified that venereal diseases and parasitic infections are more prevalent among homosexuals than among heterosexuals and that Kentucky, which outlaws homosexual sodomy, has “relatively few cases of AIDS in comparison with other states in the Union.”
II. Equal Protection
We must now turn to the equal protection analysis provided by the majority opinion. Wasson raised this issue in district court but Judge Paisley did not reach the issue. The county attorney pursued the matter on appeal to the circuit court and Judge Tackett decided this question.
The prosecution of the defendant for the criminal solicitation of sodomy does not deny him equal protection of the laws under the Kentucky Constitution. Any analysis of equal protection must include three basic elements. First, is the claimant a member of a distinctive group or recognizable class? If so, does the statute in question treat that class of individuals any differently than it does others? If so, is there a rational basis or legitimate governmental interest in making such a distinction?
Here, the majority opinion fails to correctly analyze the issue. The defendant here has demonstrated only that he belongs to a broader group, to-wit: those persons engaging or wishing to engage in the solicitation of sodomy. Such individuals do not constitute a constitutionally recognizable class because they are not distinguishable from the rest of society by certain immutable characteristics such as race, gender, or national origin. Cf. Ford v. Seabold, 841 F.2d 677 (6th Cir.1988). Shared attitudes or preferences of any kind do not establish a recognizable class because they are subject to change. Cf. Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987).
Secondly, the statute here relates to conduct and not to persons who may choose to label themselves as “homosexuals.” Nothing in this record indicates that anyone has identified the defendant as a homosexual. Much of the testimony in the trial court related to presentation by expert witnesses regarding homosexuality. The testimony of Dr. Martin S. Weinberg indicates that persons other than homosexuals engage in sodomy.
Finally, a careful examination of the record in this case indicates there is a reasonable basis for K.R.S. 510.100 because Kentucky’s interest in eradicating such behavior is compelling. Cf. Pfyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).
Kentucky has determined that neither a fundamental right nor a suspect class is involved and that the proper test to be applied under the equal protection clause is whether there is a rational basis for different treatment. Hooks v. Smith, Ky.App., 781 S.W.2d 522 (1989), citing Johnson v. Dixon, Ky., 501 S.W.2d 256 (1973); Kentucky Milk Marketing and Anti-Monopoly Com’n v. Borden Co., Ky., 456 S.W.2d 831 (1970).
*517The practice of consensual homosexual sodomy is not a fundamentally protected right as specifically determined in the Federal Bowers case. Homosexuals are not a suspect class, and consequently, K.R.S. 510.100 is constitutional because Kentucky has a legitimate and rational interest in protecting the health, safety and morality of its citizens. Bosworth v. City of Lexington, 277 Ky. 90, 125 S.W.2d 995 (1939).
K.R.S. 510.100 is not subject to strict scrutiny because it does not create a suspect class. It only prohibits acts of homosexual sodomy.
The Supreme Court of Missouri in State v. Walsh, 713 S.W.2d 508 (Mo.1986), rejected the argument that a sexual misconduct statute similar to the fourth-degree sodomy statute in Kentucky is subject to strict scrutiny. The Missouri court held that classifications are race, national origin and alienage, but not sexual preference. Missouri has a better reasoned approach to this situation.
K.R.S. 510.100 is not a gender-based statute requiring an intermediate level of scrutiny. Therefore the proper test to be applied under the equal protection clause of the Kentucky Constitution is whether there is a rational basis for different treatment. Hooks v. Smith, Ky.App., 781 S.W.2d 522 (1989). The legislature has discretion to determine what is harmful to health, morals and public welfare. Walters v. Bindner, Ky., 435 S.W.2d 464 (1968), and there is a presumption of constitutionality of statutes even in cases of reasonable doubt. Bindner, supra, at 467.
K.R.S. 510.100 is rationally related to the constitutionally permissible object of permitting and promoting public morality. See Bowers, 478 U.S. at 195, 106 S.Ct. at 2846, at 92 L.Ed.2d at 149.
K.R.S. 510.100 is rationally related to a legitimate interest by the state in protecting public health. The defense witness, Dr. Raff testified that in the United States, AIDS is primarily a homosexual disease and 73 percent of all cases are among male homosexuals. Such facts provide a rational basis for distinguishing between act of heterosexual sodomy and acts of homosexual sodomy. “It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.” Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949). Cf. Walsh at p. 512.
The prosecution of a defendant for criminal solicitation of sodomy in the fourth degree does not deny him equal protection of the law under the Kentucky Constitution.
III. State Constitutional Law
It would seem that the effect of the majority opinion unwittingly exalts one person’s individual rights over the rights of another person. Individual citizens have a right to be left alone, free from public solicitation to engage in sodomy.
The majority opinion totally ignores the practical problems of privacy. If an act is truly private, there is no practical way of enforcing a statute prohibiting it. It is only when another person is involved and then that the entire shallow logic of the majority opinion is shattered. The Mill theory of totally rugged individualism is flawed because “No man is an island.” Consensual sodomy by definition involves at least two individuals. It has an impact on other people and clearly has a ripple effect. Almost everything individuals do involves someone else. This is not a contemporary or modern thought, it is ancient and has existed since time immemorial: “Am I my brother’s keeper?” The answer was “Yes.”
There are real everyday problems involving privacy totally ignored by the majority opinion probably as too mundane. Ordinary citizens are now subject on a daily basis to have their credit files examined, their driving records divulged along with health records, medical records, telephone records and even the records of movies rented at a video store. It is almost impossible for an individual to seek redress for the misuse of certain personal information. These are the real problems of privacy.
What the majority opinion signals is a kind of unwritten consensus constitution, *518constantly amendable by judicial discovery in the emanations and penumbras it finds. In this type of operating atmosphere, the real written constitution can be altered and violated very easily.
A great deal has been written about what is claimed to be the recent emergence of state constitutional law. Actually the interest in state constitutional law is simply a return to a recognition of the historical fact that state constitutions exist and function completely independently of the Federal Constitution. That does not mean we can ignore the requirements of the Fourteenth Amendment to the Federal Constitution. Under these circumstances the state and federal courts and the legal systems function as a partnership in the protection of specific constitutional rights. There are two levels of constitutional protection — one federal and one state. However, they are not totally ignorant of each other. Many provisions of the state and federal constitutions are parallel, if not identical. A constitution is the most basic structure of anything, that is how it is constituted. The constitution of a state reflects its basic makeup, the source and delineation and limitation of the rights and powers of any government within that society.
Those who pay great homage to the English common law and its constitutional system sometimes fail to recognize the essential difference between the English and American Constitution is not that the English constitution is unwritten and our Federal constitution is written, actually, it is that the English system is founded on a concept of parliamentary supremacy and the American constitutional theory is that sovereignty itself resides in all the people. Where the people are sovereign, their conception of their constitution exists apart from, and above, any transient legislative enactments. In a representative democracy, one of the greatest threats to traditional constitutional values arises from passing, but seemingly popular, “progressive” ideas. In the rush to pacify the “squeaking wheels” of special interest groups, long observed legal principles are frequently momentarily abandoned. It is an important function of the court of last resort in any state to differentiate between passing idealogy and permanent value. The most important principle to keep in mind in determining constitutional validity is the will of the people while recognizing the rights of the minority. Equal justice under law must be applied to all citizens, not simply to those who represent a passing special interest who loudly assert their “rights.” This is of particular relevance in the application and interpretation of state constitutional law.
An examination of one of the introductory phrases of the majority opinion in Kentucky Center for the Arts Corp. v. Burns, Ky., 801 S.W.2d 327 (1990) is very useful in raising the question of who protects the citizens against the overreaching of the Supreme Court. Equal protection of the law extends to all the citizens, not just those who claim a specialized self-ordained label.
Privacy is an issue full of emotion. There is nothing that makes any person angrier than the suspicion that somebody is looking over their shoulder or peering into their private affairs. Every citizen feels vulnerable and ineffectual when our right to privacy is violated. One of the earliest expressions of a Federal right to privacy was by Justice Brandeis in his dissent in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928), when he characterized it as the right to be left alone. Certainly that is an appealing and attractive philosophy. Clearly every individual has an absolute right to be left alone from the public solicitation to engage in sodomy.
Kentucky has already established standards for deciding state constitutional issues in Rudasill, supra. The four-part test includes the examination of a text of the constitution; the intent of the drafters; a comparison of the state and federal constitutions and an analysis of prior judicial opinions. These are reasonable guidelines and have not been applied by the majority opinion.
Only the people have the right to decide what are constitutional rights. There is a *519mechanism through the amendment of the existing constitution or through the adoption of a new constitution to articulate constitutional rights.
It is neither the right of the legislature, nor of this Court, to exercise arbitrary power over the liberty of free men. Section 3 of the Kentucky Constitution provides in pertinent part that all persons when they form a social compact are equal. Clearly that means those citizens who do not wish to have their privacy invaded by a solicitation to engage in consensual sodomy have significant constitutional rights which have been ignored by the majority opinion in this case.
The majority opinion seeks support from almost every recent opinion of this Court when it cites Rose, Tabler, Ingram, Dean, Fannin and Perkins, as well as Harvard Professor Tribe. It is a vain solicitation because the majority opinion has ignored the very threshold of the question, that is, the right of the people of Kentucky to regulate their own conduct in societal matters pursuant to a true concept of equal protection of the law for all citizens, including those who are not accused of any crime.
There is no great mystery about the application of the Ninth Amendment to the Federal Constitution. The drafters of the Federal Constitution recognized a fundamental right of all citizens which transcends the mundane legal system. The Federal Constitution recognizes there are certain rights which are retained by the people. Any reasonable analysis of the Tenth Amendment to the Federal Constitution recognizes the congruity of the language and the placement of each amendment. The Tenth Amendment recognizes the rights of the states as distinguished from the fundamental right of the people to perform governmental functions on behalf of the people of the individual states in harmony with the Federal law.
Conclusion
There is a vast difference between liberty and license. License, in this context, means an excessive undisciplined freedom constituting an abuse of liberty. See Liberty, Its Use and Abuse, Ignatius W. Cox, S.J., McMullen Co., N.Y., 1946.
The focus of the majority opinion is fuzzy. It is not clear what the majority opinion has in mind when it refers to a “caring relationship” in the very third sentence of this opinion. Does that mean that the level of private consensual sodomy is subject to continuing judicial review? Is there “caring” incest, suicide, drug use or prostitution? Is each individual circumstance subject to individual case-by-case review?
The entire discussion and rationale of the majority opinion is rooted in legalistic language based in large part on the discredited and irresponsible philosophy of John Stuart Mill. The average person must wonder if the majority opinion means that telemarketers can now invade Kentucky with legal telephone calls to solicit consensual sodomy? What is to prevent it?
It may well be that the people have only one recourse and that is to seek a constitutional amendment to establish what is now the statutory prohibitions against fourth-degree sodomy in the constitutional law of this state.
The majority opinion patently fails the test set out in Rudasill, which is the existing law of this State. The majority opinion arbitrarily substitutes its own standards based on turn-of-the-century prohibition cases, the philosophy of Mill and its own interpretation of Kentucky law, and it relies on subjective values of the court majority. It does not adhere to a consistent or neutral standard, but rather invents a shifting case-by-case posture. There is no conviction underlying the many words of the majority opinion.
There must be an understanding that all persons are not alike but all have a right to live peacefully in our society. The judicial system falters if it does not observe such a right.
The judgment of the Fayette Circuit Court should be reversed with directions *520that the case be remanded to the Fayette District Court for trial on the merits.
REYNOLDS, J., concurs in the result reached by this dissent.