New York v. Uplinger

467 U.S. 246
Brief Filed: 12/83
Court: Supreme Court of the United States
Year of Decision: 1984

Read the full-text amicus brief (PDF, 1.4MB)


Whether a New York loitering law that prohibited loitering for the purpose of engaging in "deviate" sexual intercourse was unconstitutional

Index Topic

Sexual Orientation (anti-sodomy law)


Uplinger was arrested by the Buffalo Police Department for violating a New York law that prohibited loitering in a public place for the purpose of engaging, or soliciting another person to engage, in deviate sexual intercourse or other sexual behavior of a deviate nature. Uplinger offered oral sex to an undercover police officer and was arrested. At trial, he argued that the statute was unconstitutional, but was convicted. His conviction was upheld on appeal. A 6-1 majority of New York's highest court dismissed the prosecution, holding that the loitering law was a complement to the New York anti-sodomy law that had been found unconstitutional in an earlier case. The state petitioned the U.S. Supreme Court for review.

APA's Position

The Lamda Legal Defense Fund asked APA to participate as an amicus. APA submitted a brief arguing that: (1) the Court should not review the decision in People v. Onofre, 511 N.Y. 2d 476 (1980) on the basis of the record in this case because this case did not present the constitutional issue found in Onofre of whether the state may criminalize private, non-commercial sexual conduct between consenting adults; (2) if the Court were to find the nature and extent of deviant sexual intercourse to be relevant in the present case, it should take into account scientific information about such conduct, for example, psychological opinion states that the variant sexual conduct declared deviant by the New York Penal Code is natural and common among both heterosexuals and homosexuals, is not pathological or harmful and may be beneficial to many heterosexuals, homosexuals and disabled people; (3) for numerous reasons, criminalization of private, consensual, variant sexual practices does not benefit society or people who would engage in such practices, criminalization does not deter variant sexual practices or affect the prevalence of homosexuality, and criminalization of variant sexual conduct between consenting adults is psychologically harmful to them.


The U.S. Supreme Court dismissed the writ for certiorari as improvidently granted because a meaningful review of the constitutional issues would require a review of the Onofre case.