842 S.W.2d 487 (1992)

COMMONWEALTH of Kentucky, Appellant,
v.
Jeffrey WASSON, et al., Appellees.

No. 90-SC-558-TG.

Supreme Court of Kentucky.

September 24, 1992. Rehearing Denied January 21, 1993.

*488 Chris Gorman, Atty. Gen., David A. Smith, Kent T. Young, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellant.

Ernesto Scorsone, Scorsone & Ransdell, Pam Goldman, Dean W. Bucalos, Brown, Bucalos, Santana & Bratt, Lexington, for appellee.

Louis A. Ball, President, Ky. Commonwealth's Attys. Assoc., Newport, Michael E. Conliffe, President, Kentucky County Attys. Assoc., Louisville, for amici curiae Kentucky Commonwealth's Attys. Assoc. and Kentucky County Attys. Assoc.

Ronald D. Ray, John L. Weeks, Louisville, for amici curiae Citizens for Decency Through Law, etc.

George B. Bertram, Campbellsville, Dennis H. Staffelbach, Tupelo, MS, for amicus curiae Am. Family Assoc. Law Center.

Kenneth C. Plotnik, Louisville, Stanley M. Spracker, Joshua L. Sheinkman, JinKyu Koh, Weil, Gotshal & Manges, Washington, DC, for amici curiae Am. Public Health Assoc., etc.

David W. Ogden, Cynthia Misicka, Jenner & Block, Washington, DC, Allen W. Holbrook, Owensboro, for amici curiae Am. Psychological Assoc., etc.

Ruth E. Harlow, William B. Rubenstein, New York City, David A. Friedman, Louisville, for amici curiae Am. Friends Service Comm., etc.

Frank E. Haddad, Jr., Stephen P. Durham, Louisville, William E. Johnson, Lexington, for amicus curiae Ky. Assoc. of Criminal Defense Lawyers.

Carolyn F. Shain, Eric J. Graninger, C. Frederick Jenkins, Louisville, for amici curiae James E. Andrews, etc.

LEIBSON, Justice.

Appellee, Jeffrey Wasson, is charged with having solicited an undercover Lexington policeman to engage in deviate sexual intercourse. KRS 510.100 punishes "deviate sexual intercourse with another person of the same sex" as a criminal offense, and specifies "consent of the other person shall not be a defense." Nor does it matter that the act is private and involves a caring relationship rather than a commercial one. It is classified as a Class A misdemeanor.

The appellee is actually charged under KRS 506.030, which covers "solicitation" to commit any criminal offense. If the offense solicited is a Class A misdemeanor, solicitation of the offense is punished as a Class B misdemeanor. KRS 506.030(2)(d). The issue here is whether KRS 510.100, which defines the underlying criminal offense, is constitutional.

The charges were brought in the Fayette District Court where appellee moved to dismiss the charge on grounds that a statute criminalizing deviate sexual intercourse between consenting adults of the same sex, even if the act is committed in the privacy of a home, violates the Kentucky Constitution as: (1) an invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment.

The Fayette District Judge held the statute violated appellee's right of privacy, and dismissed the charge. The Commonwealth *489 appealed to Fayette Circuit Court which affirmed, and further held this statute infringed upon equal protection guarantees found in the Kentucky Constitution. Once more the Commonwealth appealed, and, because of the constitutional issues involved, this Court granted transfer.

Both courts below decided the issues solely on state constitutional law grounds, and our decision today, affirming the judgments of the lower courts, is likewise so limited. Federal constitutional protection under the Equal Protection Clause was not an issue reached in the lower courts and we need not address it. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) held federal constitutional protection of the right of privacy was not implicated in laws penalizing homosexual sodomy. We discuss Bowers in particular, and federal cases in general, not in the process of construing the United States Constitution or federal law, but only where their reasoning is relevant to discussing questions of state law.

A third issue presented at the trial level was whether KRS 510.100 violated state and federal constitutional protections against cruel punishment. This issue was decided against Wasson in District Court, but not addressed in the Circuit Court judgment. The issue is not preserved, and we decline to discuss it.

The brief statement of facts upon which the District Court rendered judgment is as follows:

Lexington police were conducting a downtown undercover operation. Their modus operandi was to drive to a certain parking area, in plain clothes with microphones on their persons, and try to engage in conversation with persons passing by to see whether they would be solicited for sexual contact. The taped conversation between the undercover officer and Wasson covered approximately 20-25 minutes, toward the end of which Wasson invited the officer to "come home" to his residence. The officer then prodded Wasson for details, and Wasson suggested sexual activities which violated KRS 510.100. There was no suggestion that sexual activity would occur anyplace other than in the privacy of Wasson's home. The sexual activity was intended to have been between consenting adults. No money was offered or solicited.

Seven expert witnesses testified in support of Wasson's case: (1) a cultural anthropologist testified about the presence of homosexuals in every recorded human culture, including societies where they were rejected and those where they have been tolerated or even welcomed; (2) a Presbyterian minister discussed Biblical references, providing a modern interpretation that these references were not an indictment of homosexuals as such, but rather statements against aggression, inhospitality and uncaring relationships; (3) a social historian testified about the presence of homosexuals throughout the history of the United States, despite what was at times exceptionally strict punishment for homosexual acts; (4) a sociologist and sex researcher (a co-author of the Kinsey Report on homosexual behavior) testified that studies indicated "`homosexuality' is just as deep-rooted as `heterosexuality'," that it is not a choice and there is no "cure" for it, and that sexual acts prohibited to homosexuals by KRS 510.100, oral and anal sex, are practiced widely by heterosexuals; (5) a psychologist testified that homosexuality is no longer classified as a personality disorder by either the American Psychological Association or the American Psychiatric Association, and further, rather than being in and of themselves either harmful or pathological, the sexual acts outlawed by KRS 510.100 are a necessary adjunct to their sex life; (6) a therapist from a comprehensive care treatment center in Lexington, with fourteen years' experience counseling homosexual clients, testified that the statute criminalizing their sexual activities has an adverse impact on homosexuals and interferes with efforts to provide therapy to those who may need it; and (7) the Professor of Medicine at the University of Louisville, Chief of the Infectious Diseases section, testified at length about the origins and spread of AIDS, expressing the opinion that the statute in question offers no benefit in preventing the spread *490 of the disease and can be a barrier to getting accurate medical histories, thus having an adverse effect on public health efforts.

The testimony from Wasson's expert witnesses is further substantiated by extensive citations to medical and social science literature and treatises supplied in Amicus Curiae Briefs filed by national and state associations of psychologists and clinical social workers, various national and state public health associations, and organizations covering a broad spectrum of religious denominations.^[1]

The Commonwealth, on the other hand, presented no witnesses and offers no scientific evidence or social science data. Succinctly stated, its position is that the majority, speaking through the General Assembly, has the right to criminalize sexual activity it deems immoral, without regard to whether the activity is conducted in private between consenting adults and is not, in and of itself, harmful to the participants or to others; that, if not in all instances, at least where there is a Biblical and historical tradition supporting it, there are no limitations in the Kentucky Constitution on the power of the General Assembly to criminalize sexual activity these elected representatives deem immoral.

The Commonwealth maintains that the United States Supreme Court's decision in Bowers v. Hardwick, supra, is dispositive of the right to privacy issue; that the "Kentucky Constitution did not intend to confer any greater right to privacy than was afforded by the U.S. Constitution." Turning to the equal protection argument raised by a statute which criminalizes oral or anal intercourse between persons of the same sex, but not between persons of different sexes, which was not addressed in the Bowers case, the Commonwealth argues there is "a rational basis for making such a distinction." To support this argument the Commonwealth takes bits and pieces from the testimony of Wasson's expert witnesses out of context and disregards their overwhelming evidence to the contrary. The thrust of the argument advanced by the Commonwealth as a rational basis for criminalizing consensual intercourse between persons of the same sex, when the same acts between persons of the opposite sex are not punished, is that the level of moral indignation felt by the majority of society against the sexual preference of homosexuals justifies having their legislative representatives criminalize these sexual activities. The Commonwealth believes that homosexual intercourse is immoral, and that what is beyond the pale of majoritarian morality is beyond the limits of constitutional protection.

At the outset the subject is made difficult by a confusion of terms. KRS 510.100 is styled a "sodomy" statute, but its reach is not limited to the Biblical or traditional common law definition of the term. It punishes "deviate sexual intercourse with another of the same sex." "Deviate sexual intercourse" is defined in KRS 510.010(1) as including "any act of sexual gratification involving the sex organs of one (1) person and the mouth or anus of another[.]"

A significant part of the Commonwealth's argument rests on the proposition that homosexual sodomy was punished as an offense at common law, that it has been punished by statute in Kentucky since 1860, predating our Kentucky Constitution. Indeed, in Bowers v. Hardwick, supra, 478 U.S. at 193, n. 6, 106 S.Ct. at 2846, n. 6, the United States Supreme Court takes note of *491 the original Kentucky statute codifying the common law found at 1 Ky.Rev.Stat., Ch. 28, Art. IV, Sec. 11 (1860). This, of course, would lend credence to the historical and traditional basis for punishing acts of sodomy, but for the fact that "sodomy" as defined at common law and in this 1860 statute is an offense significantly different from KRS 510.100, limited to anal intercourse between men. Unlike the present statute our common law tradition punished neither oral copulation nor any form of deviate sexual activity between women. The definitive Kentucky case on the subject is Commonwealth v. Poindexter, 133 Ky. 720, 118 S.W. 943 (1909), summarizing the common law and statutory background, and holding:

"A penetration of the mouth is not sodomy."

In Poindexter two men were charged with sodomy "committed by the insertion of the private part of the one into the mouth of the other." The trial court dismissed the indictment as failing to state an offense, and our Court affirmed. In United States v. Milby, 400 F.2d 702, 704 (6th Cir.1968), applying the Poindexter holding, the Court states:

"Concededly, by virtue of Commonwealth v. Poindexter, 133 Ky. 720, 118 S.W. 943 (1909), in order for the act of sodomy to be committed by one person on another, under Kentucky law, it is necessary that there be anal penetration."

The Commentary to the Penal Code enacted in 1974 points out:

"Under former Kentucky law penetration of the mouth was not sufficient.. . .

Sodomy in the fourth degree . . . broadens former Kentucky law by including oral copulation." Commentary, KRS 510.070.

Thus the statute in question here punishes conduct which has been historically and traditionally viewed as immoral, but much of which has never been punished as criminal.

The grounds stated by the District Court for striking down the statute as unconstitutional are:

"KRS 510.100 clearly seeks to regulate the most profoundly private conduct and in so doing impermissibly invades the privacy of the citizens of this state.

Having so found, the Court need not address the other issues raised by the parties."

The Order expressing the judgment of the Fayette Circuit Court "agree[d] with that conclusion," and further held the statute "unjustifiably discriminates, and thus is unconstitutional under Sections 2 and 3 of our Kentucky Constitution." These Sections are:

"§ 2. Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.

§ 3. All men, when they form a social compact, are equal. . . ."

These Sections, together with Sections 59 and 60 of our Kentucky Constitution which prohibit "local or special" legislation, express the guarantee of equal treatment provided by the law in our Kentucky Constitution. The lower courts' judgments limit their finding of unconstitutionality to state constitutional grounds. Bowers v. Hardwick, supra, speaks neither to rights of privacy under the state constitution nor to equal protection rights under either federal or state constitutions. Bowers addressed the constitutionality of a Georgia statute prohibiting acts of consensual sodomy between persons of the same sex or the opposite sex. Because the Georgia statute embraced both heterosexual and homosexual conduct, the Bowers opinion did not involve the Equal Protection Clause of the Fourteenth Amendment.

For reasons that follow, we hold the guarantees of individual liberty provided in our 1891 Kentucky Constitution offer greater protection of the right of privacy than provided by the Federal Constitution as interpreted by the United States Supreme Court, and that the statute in question is a violation of such rights; and, further, we hold that the statute in question *492 violates rights of equal protection as guaranteed by our Kentucky Constitution.

I. RIGHTS OF PRIVACY

No language specifying "rights of privacy," as such, appears in either the Federal or State Constitution. The Commonwealth recognizes such rights exist, but takes the position that, since they are implicit rather than explicit, our Court should march in lock step with the United States Supreme Court in declaring when such rights exist. Such is not the formulation of federalism. On the contrary, under our system of dual sovereignty, it is our responsibility to interpret and apply our state constitution independently. We are not bound by decisions of the United States Supreme Court when deciding whether a state statute impermissibly infringes upon individual rights guaranteed in the State Constitution so long as state constitutional protection does not fall below the federal floor, meaning the minimum guarantee of individual rights under the United States Constitution as interpreted by the United States Supreme Court. Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570, 575 (1975). The holding in Oregon v. Hass is:

"[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this [United States Supreme] Court holds to be necessary upon federal constitutional standards." [Emphasis original.]

Contrary to popular belief, the Bill of Rights in the United States Constitution represents neither the primary source nor the maximum guarantee of state constitutional liberty. Our own constitutional guarantees against the intrusive power of the state do not derive from the Federal Constitution. The adoption of the Federal Constitution in 1791 was preceded by state constitutions developed over the preceding 15 years, and, while there is, of course, overlap between state and federal constitutional guarantees of individual rights, they are by no means identical. State constitutional law documents and the writings on liberty were more the source of federal law than the child of federal law. See Vol. 1:1988, "Emerging Issues in State Constitutional Law," A.E. Dick Howard, The Renaissance of State Constitutional Law. The Virginia Bill of Rights, which had great impact, preceded not only the Bill of Rights in the United States Constitution, but by one month the Declaration of Independence. In an article in the Kentucky Law Journal, Vol. 80: 1991-92, No. 1, The Kentucky Bill of Rights: A Bicentennial Celebration, by Gormley and Hartman, the authors attribute the source of much of our original Kentucky Bill of Rights to the then recently enacted Pennsylvania counterpart:

"A comparison of the Kentucky Bill of Rights of 1792 and a number of earlier, now defunct constitutions of the leading colonies, demonstrates unequivocally that the original Kentucky Bill of Rights was borrowed almost verbatim from the Pennsylvania Constitution of 1790."

The evidence supporting this proposition is carefully documented in the article. Thus, while we respect the decisions of the United States Supreme Court on protection of individual liberty, and on occasion we have deferred to its reasoning, certainly we are not bound to do so, and we should not do so when valid reasons lead to a different conclusion.

We are persuaded that we should not do so here for several significant reasons. First, there are both textual and structural differences between the United States Bill of Rights and our own, which suggest a different conclusion from that reached by the United States Supreme Court is more appropriate. More significantly, Kentucky has a rich and compelling tradition of recognizing and protecting individual rights from state intrusion in cases similar in nature, found in the Debates of the Kentucky Constitutional Convention of 1890 and cases from the same era when that Constitution was adopted. The judges recognizing that tradition in their opinions wrote with a direct, firsthand knowledge of the mind set of the constitutional fathers, upholding the right of privacy against the intrusive police power of the state. This tradition is formulated in ringing terms in the opinion of this Court in Commonwealth *493 v. Campbell, 133 Ky. 50, 117 S.W. 383 (1909), but it is also the common thread found in Commonwealth v. Smith, 163 Ky. 227, 173 S.W. 340 (1915), Hershberg v. City of Barbourville, 142 Ky. 60, 133 S.W. 985 (1911), Adams Express Co. v. Commonwealth, 154 Ky. 462, 157 S.W. 908 (1913), and Lewis v. Commonwealth, 197 Ky. 449, 247 S.W. 749 (1923). Leading tort cases grounded on that same right of privacy include Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364 (1909), Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849 (1912), and Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927).

Kentucky cases recognized a legally protected right of privacy based on our own constitution and common law tradition long before the United States Supreme Court first took notice of whether there were any rights of privacy inherent in the Federal Bill of Rights. The first mention of a federal guarantee of the right of privacy is in the Dissenting Opinion of Justice Louis Brandeis in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928), in which he defined it as "the right to be let alone — the most comprehensive of rights and the right most valued by civilized men." Actual recognition by the majority as a working premise came much later in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

The list of individual rights guaranteed by the Federal Bill of Rights is patently incomplete; ergo the Ninth Amendment stating:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Federal constitutional analysis has proceeded from so-called "emanations" and "penumbras" of the First, Third, Fourth and Fifth Amendments in the Bill of Rights. These amendments elaborate some of the "blessings of liberty" referred to in the Preamble to the United States Constitution, but by no means all of them. It is because the United States Supreme Court has recognized that the list is not exclusive, not even for purposes of federal constitutional protection, that it has undertaken, using the Due Process Clauses in the Fifth and Fourteenth Amendments, to create a so-called zone of privacy constitutionally beyond the reach of governmental intrusion. But the United States Supreme Court is extremely reticent in extending the reach of the Due Process Clauses in substantive matters, albeit this is the jurisprudence of this century and not before, following President Franklin D. Roosevelt's court packing efforts in the 1930's.

Bowers v. Hardwick, supra, expresses this reticence. The United States Supreme Court, defining the reach of the zone of privacy in terms of federal due process analysis, limits rights of privacy to "liberties that are `deeply rooted in this Nation's history and tradition.'" 478 U.S. at 192, 106 S.Ct. at 2844. Sodomy is not one of them. Bowers v. Hardwick decides that rights protected by the Due Process Clauses in the Fifth and Fourteenth Amendments to the United States Constitution do not "extend a fundamental right to homosexuals to engage in acts of consensual sodomy." See 478 U.S. at 192, 106 S.Ct. at 2844.

Bowers decides nothing beyond this. But state constitutional jurisprudence in this area is not limited by the constraints inherent in federal due process analysis. Deviate sexual intercourse conducted in private by consenting adults is not beyond the protections of the guarantees of individual liberty in our Kentucky Constitution simply because "proscriptions against that conduct have ancient roots." 478 U.S. at 192. Kentucky constitutional guarantees against government intrusion address substantive rights. The only reference to individual liberties in the Federal Constitution is the statement in the Preamble that one of the purposes in writing in the Constitution is to "secure the Blessings of Liberty to ourselves and our Posterity." Similarly, the Kentucky Constitution has a Preamble:

"We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties *494 we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution."

But the Kentucky Constitution of 1891 does not limit the broadly stated guarantee of individual liberty to a statement in the Preamble. It amplifies the meaning of this statement of gratitude and purpose with a Bill of Rights in 26 sections, the first of which states:

"§ 1. All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties.

. . . .

Third: The right of seeking and pursuing their safety and happiness.

. . . .

§ 2. Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority."

While addressing some of the same considerations as those expressed in the Preamble to the Federal Constitution, none of this textual material appears in the Federal Constitution. Both the record of the 1890-91 debates and the opinions of Justices of this Court who were the contemporaries of our founding fathers express protection of individual liberties significantly greater than the selective list of rights addressed by the Federal Bill of Rights. There was no mention of a right of privacy in these debates only because the concept was not verbalized as such until after the article by Warren and Brandeis, The Right of Privacy, 4 Harv.L.Rev. 193, December 15, 1890, had been publicly disseminated. The ideas Brandeis and Warren expressed in that article as the "right of privacy" were neither unique to the authors nor confined to the Harvard Law School. They were an expression of contemporary thought.

The Commonwealth has stressed that there was no discussion of the right of privacy at the 1890 Kentucky Constitutional Convention, but that is only partly true. The meaning of Sections One and Two as they apply to personal liberty is found in the remarks of J. Proctor Knott of Marion County (see Official Report of the Proceedings and Debates in the 1890 Convention, E. Polk Johnson, Vol. 1, p. 718):

"[T]hose who exercise that power in organized society with any claim of justice, derive it from the people themselves. That with the whole of such power residing in the people, the people as a body rest under the highest of all moral obligations to protect each individual in the rights of life, liberty, and the pursuit of happiness, provided that he shall in no wise injure his neighbor in so doing." [Emphasis added.]

See also Comments of Delegate J.A. Brents from Clinton County. Debates, Vol. 1, p. 614-18, concluding "majorities cannot and ought not exercise arbitrary power over the minority."

The leading case on this subject is Commonwealth v. Campbell, supra. At issue was an ordinance that criminalized possession of intoxicating liquor, even for "private use." Our Court held that the Bill of Rights in the 1891 Constitution prohibited state action thus intruding upon the "inalienable rights possessed by the citizens" of Kentucky. Id. 117 S.W. at 385.

Our Court interpreted the Kentucky Bill of Rights as defining a right of privacy, even though the constitution did not say so in that terminology:

"Man in his natural state has the right to do whatever he chooses and has the power to do. When he becomes a member of organized society, under governmental regulation, he surrenders, of necessity, all of his natural right the exercise of which is, or may be, injurious to his fellow citizens. This is the price that he pays for governmental protection, but it is not within the competency of a free government to invade the sanctity of the absolute rights of the citizen any further than the direct protection of society requires.. . . It is not within the competency of government to invade the privacy of a citizen's life and to regulate his conduct in matters in which he alone is concerned, or to prohibit him *495 any liberty the exercise of which will not directly injure society. Id. [Emphasis added.]

. . . .

. . . let a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws." Id. at 386.

The Court concludes, at p. 387:

"The theory of our government is to allow the largest liberty to the individual commensurate with the public safety, or, as it has been otherwise expressed, that government is best which governs least. Under our institutions there is no room for that inquisitorial and protective spirit which seeks to regulate the conduct of men in matters in themselves indifferent, and to make them conform to a standard, not of their own choosing, but the choosing of the lawgiver. . . ."

The right of privacy has been recognized as an integral part of the guarantee of liberty in our 1891 Kentucky Constitution since its inception. The Campbell case is overwhelming affirmation of this proposition:

"[W]e are of the opinion that it never has been within the competency of the Legislature to so restrict the liberty of this citizen, and certainly not since the adoption of the present [1891] Constitution. The Bill of Rights, which declares that among the inalienable rights possessed by the citizens is that of seeking and pursuing their safety and happiness, and that the absolute and arbitrary power over the lives, liberty, and property of freeman exists nowhere in a republic, not even in the largest majority, would be but an empty sound if the Legislature could prohibit the citizen the right of owning or drinking liquor, when in so doing he did not offend the laws of decency by being intoxicated in public. . . ." Id. at 385.

In Adams Exp. Co. v. Kentucky, 238 U.S. 190, 35 S.Ct. 824, 59 L.Ed. 1267 (1915), the United States Supreme Court quotes this language from the Campbell case, and then holds:

"It therefore follows that, inasmuch as the facts of this case show that the liquor was not to be used in violation of the laws of the state of Kentucky, as such laws are construed by the highest court of that state, the Webb-Kenyon [federal] law has no application and no effect to change the general rule that the states may not regulate commerce wholly interstate." Id. 238 U.S. at 202, 35 S.Ct. at 828, 59 L.Ed. at 1271.

At the time Campbell was decided, the use of alcohol was as much an incendiary moral issue as deviate sexual behavior in private between consenting adults is today. Prohibition was the great moral issue of its time. It was addressed both in the 1891 Constitution and in the Nineteenth Amendment of the United States Constitution. In 1907, 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 in a pro-prohibition ruling interpreting Section 61 of the Kentucky Constitution, which provides for local option elections. He stated:

"There is yet another view of the subject which we must assume was in the mind of the Convention. The liquor traffic had then [in 1891] come to be regarded as one of the most serious evils of the age, if not the most sinister menace to society that was known.

. . . .

No other subject had been more clearly settled upon as being within the legitimate exercise of the police power of the state than the regulation of the sale and use of intoxicating liquors." Id. 101 S.W. at 948.

Notwithstanding their strong views that drinking was immoral, this same Court with these same judges, including Judge O'Rear, in the Campbell case recognized that private possession and consumption of intoxicating liquor was a liberty interest beyond the reach of the state.

Nor is the Campbell case an aberration. Subsequent cases cited and followed Campbell. In Commonwealth v. Smith, *496 163 Ky. 227, 173 S.W. 340 (1915), citing Campbell, the Court declared a statute unconstitutional that had led to Smith being arrested for drinking beer in the backroom of an office:

"The power of the state to regulate and control the conduct of a private individual is confined to those cases where his conduct injuriously affects others. With his faults or weaknesses, which he keeps to himself, and which do not operate to the detriment of others, the state as such has no concern." Id., 173 S.W. at 343.

The holding in Smith is that "the police power may be called into play [only] when it is reasonably necessary to protect the public health, or public morals, or public safety." [Emphasis added.]

The clear implication is that immorality in private which does "not operate to the detriment of others," is placed beyond the reach of state action by the guarantees of liberty in the Kentucky Constitution.

In Hershberg v. City of Barbourville, 142 Ky. 60, 133 S.W. 985 (1911), also citing Campbell, the Court declared an ordinance which purported to regulate cigarette smoking in such broad terms that it could be applied to persons who smoked in the privacy of their own home "unreasonably interfere[ed] with the right of the citizen to determine for himself such personal matters." 133 S.W. at 986.

In the area of civil law, Kentucky has been in the forefront in recognizing the right of privacy. In 1909, our Court stepped outside traditional libel law and recognized invasion of privacy as a tort in Foster-Milburn Co. v. Chinn, supra. Then in 1927, in Brents v. Morgan, supra, our Court defined this emerging right as "the right to be left alone, that is, the right of a person to be free from unwarranted publicity, or the right to live without unwarranted interference by the public about matters with which the public is not necessarily concerned."

"The right of privacy is incident to the person and not to property. . . . It is considered as a natural and an absolute or pure right springing from the instincts of nature. It is of that class of rights which every human being has in his natural state and which he did not surrender by becoming a member of organized society. The fundamental rights of personal security and personal liberty, include the right of privacy, the right to be left alone. . . . The right to enjoy life [Ky. Const., § 1, first subpart] in the way most agreeable and pleasant, and the right of privacy is nothing more than a right to live in a particular way." Id. at 971, quoting 21 RCL parg. 3, p. 1197.

See also Grigsby and Wife v. R.J. Breckinridge, 65 Ky. (2 Bush) 480 (1867) and Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849 (1912), for further confirmation that the right of privacy has long been considered an inalienable right legally protected in this state.

In the