Robert R. Merhige, Jr.

“ It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy. ”

“ If the activity in question involves more than one participant, as in the instant case, each must be capable of consenting, and each must in fact consent to the conduct for the right of privacy to attach. For example, if one of the participants in homosexual contact is a minor, or force is used to coerce one of the participants to yield, the right will not attach. ”

“ In any event, what we know as men is not forgotten as judges--it is difficult to envision any substantial number of heterosexual marriages being in danger of dissolution because of the private sexual activities of homosexuals. ”

“ To suggest, as defendants do, that the prohibition of homosexual conduct will in some manner encourage new heterosexual marriages and prevent the dissolution of existing ones is unworthy of judicial response. ”

“ However, if the right of privacy does apply to specific courses of conduct, legitimate state restriction on personal autonomy may be justified only under the compelling state interest test. See Roe v. Wade, supra, 410 U.S. 113, 215-18, 93 S.Ct. 705 (Douglas, J., concurring) .
Plaintiffs are adults seeking protection from the effects of the statute under attack in order to engage in homosexual relations in private. Viewing the issue as we are bound to, as Mr. ”