Sawatzky v. City of Oklahoma City

Oklahoma Court of Criminal Appeals

906 P.2d 785

November 21, 1995

CHAPEL, Vice Presiding Judge.

Kenneth B. Sawatzky was found guilty by a jury on November 14, 1994, of Offering to Engage in an Act of Lewdness in violation of Oklahoma City Municipal Code 1993, Chapter 30, Section 30-152, in Oklahoma City Municipal Court. Sawatzky was formally sentenced on December 1, 1994. He was fined $250.00 and ordered to pay $105.00 in court costs.

This case is neither about the regulation of conduct between consenting adults in the privacy of their bedrooms, nor the legal status to be provided to homosexual persons. Fundamentally, this case is about whether Oklahoma City may legally prohibit public solicitations for private non-commercial acts of sodomy. Sawatzky solicited an act of lewdness in a public place from a police officer. The act solicited was intended to take place in private and Sawatzky and the officer are members of the same gender. In this context it is clear that Sawatzky is not entitled to relief.

[Footnote: Oklahoma City defines lewdness as:

a. any lascivious, lustful or licentious conduct,

b. the giving or receiving of the body for indiscriminate sexual intercourse, fellatio, cunnilingus, masturbation, anal intercourse, or lascivious, lustful or licentious conduct with any person not his or her spouse, or

c. any act in furtherance of such conduct or any appointment or engagement for prostitution.]

In his first proposition of error Sawatzky claims that Sections 30-151 and 30-152 violate his right to privacy as guaranteed under the Oklahoma Constitution. This Court has yet to reach the question of whether the right to privacy extends to private non-commercial sodomy between consenting adults of the same gender, and the United States Supreme Court has expressly refused to extend the equivalent right under the federal constitution to individuals who engage in such conduct. Bowers v. Hardwick, 478 U.S. 186 (1986). We decline to reach the issue here because this case involves a public solicitation and nothing more.

In his second and third propositions Sawatzky claims that Sections 30-151 and 30-152 violate his right to equal protection. The second proposition is based on the state constitution and the third proposition is based on the federal constitution. The right to equal protection guaranteed under Oklahoma's Constitution has consistently been interpreted as coextensive with the right to equal protection guaranteed under the federal constitution. Consequently, we address these propositions together.

Sawatzky invites this Court in his second and third propositions to determine whether same sex adults may lawfully engage in private non-commercial consensual sodomy. We declined to reach this issue in Post v. State, 715 P.2d 1105 (1986), because the facts of that case did not warrant such a determination. Likewise, the facts of Sawatzky's case do not warrant a determination of this issue and we do not address it.

This case involves a public solicitation for acts defined by Oklahoma City as lewd under Section 30-151. Section 30-151(1)(b) creates an exception for married persons in the definition of lewdness. The married person exception is the only distinction between groups contained in the text of Sections 30-151 and 30-152. Because Sawatzky is not a member of a suspect or quasi-suspect class, we will examine Sawatzky's equal protection claim under the rational basis test. Among other things Sections 30-151 and 30-152 are designed to protect persons from being asked by others to engage in sexual activity. Protecting citizens from solicitations for sexual acts is a legitimate governmental interest. The distinction found in Section 30-151, exempting married persons from the definition of lewdness, logically recognizes that such solicitations may be a consequence of the marital relationship. Therefore, we hold that the married person exception is rationally related to a legitimate governmental interest and does not violate the right to equal protection guaranteed by the Oklahoma and federal constitutions.

In his final proposition of error Sawatzky contends that Sections 30-151 and 30-152 violate his rights under Article 1, Section 2 of the Oklahoma Constitution. Essentially Sawatzky's claim is that Sections 30-151 and 30-152 are impermissibly founded on religious beliefs in violation of the establishment clause. This claim is unsupported by the record and is denied.

STRUBHAR, Judge, dissenting.

The majority in its opinion has stated that this case is not about the regulation of conduct between consenting adults in the privacy of their bedrooms or about the legal status to be provided to homosexual persons. Rather, it has held that this case is about whether Oklahoma City may legally prohibit public solicitations for private non-commercial acts of sodomy. Under the specific facts of this case, I agree that this limited approach is appropriate. It is with the majority's ensuing analysis that I disagree.

The opinion notes that the sections of the Oklahoma City ordinance under which Appellant was convicted exempt married persons from the definition of lewdness. Accordingly, non-married persons can be convicted of offering to engage in certain acts which are legal for married persons to solicit. It is the reasoning of the majority that it is lawful to distinguish between married persons and non-married persons for purposes of solicitation of lewd acts because such solicitations are a consequence of the marital relationship to which its parties have impliedly consented. Although ambiguous, this language seems to imply that dissimilar treatment of married and non-married persons is justified because public solicitation of lewd acts by non-married persons is likely to offend whereas solicitation to participate in lewd acts by married persons to one another is not. Accordingly, the majority seems to indicate that there is a legitimate governmental interest in protecting unmarried persons from offensive solicitations to engage in lewd acts.

Assuming, arguendo, that this is a valid governmental interest, I would note that such situation was not implicated by the facts of this case. The record in this case clearly supports a finding that the language spoken by Appellant which was construed to be an offer to engage in lewd acts was not made under circumstances which could reasonably have been perceived to have been offensive. Rather, as is evinced by the testimony of the arresting officer, Appellant was purposefully led to believe that a sexual solicitation would be welcome. Nothing in this situation indicated that the solicitation was unwelcome or offensive. Although the majority opinion states in a footnote that "reasonable prohibitions against soliciting sexual acts do not violate the First Amendment whether the underlying conduct is lawful or unlawful," the municipal ordinance prohibits both invited and offensive solicitations and to this extent, it imposes unreasonable restrictions. Accordingly, I dissent.