Kentucky v. Wasson

842 S.W.2d 487
Brief Filed: 8/91
Court: Supreme Court of Kentucky
Year of Decision: 1992

Read the full-text amicus brief (PDF, 433.63KB)


Whether Kentucky sodomy laws are constitutional under the Kentucky Constitution

Index Topic

Sexual Orientation (anti-sodomy law)


Jeffrey Wasson invited an undercover police officer to come home with him and to engage in sexual activities prohibited by Kentucky's anti-sodomy law. The trial court held that the statute violated the defendant's right to privacy as guaranteed by the Kentucky Constitution. On appeal, the circuit court affirmed the lower court and also found that the statute violated the equal protection provisions of the Kentucky Constitution. The Supreme Court of Kentucky agreed to review the circuit court's decision.

APA's Position

APA's amicus brief argued that the freedom to express intimacy through the proscribed sexual conduct is important to the psychological health of individuals and intimate human relationships and that the statute therefore violates the fundamental right to privacy under the Kentucky Constitution. Citing scientific psychological research and opinion, the brief asserted that: (1) the relationships of homosexual couples are psychologically important; (2) sexuality is a fundamental aspect of gay and heterosexual couples' intimate relationships; (3) the proscribed sexual conduct is an important aspect of private, sexual expression for the general population as well as gay men and women; (4) oral and anal sex do not harm but rather promote the psychological health of individuals and their relationships; (5) sexual orientation does not affect a person's ability to contribute to society; (6) discrimination against gay people is based on prejudice and false stereotypes; (7) sexual orientation is highly resistant to change, and it is therefore abhorrent for the State to penalize gay people; (8) the statute invidiously discriminated against a significant proportion of the population; and (9) the Kentucky statute actually harmed the public health and individual mental health in that it (a) was not a public health measure and was counterproductive to public health goals, (b) did not and would not deter behavior through which HIV or other sexually transmitted diseases may be spread, (c) interfered with health education efforts designed to encourage safer sexual practices, (d) did not further any mental health objectives, but rather injured the mental health of many members of society, with harmful repercussions for individual physical health, (e) was psychologically damaging to gay men and lesbians, (f) was likely to reinforce hostility, discrimination and violence against gay people, and (g) was likely to interfere with law enforcement efforts to deter violent crimes against gay men and lesbians.


By a 4-3 vote, the Supreme Court of Kentucky struck down the statute. Specifically, the Court ruled that homosexuality meets the criteria for a suspect legislative classification. The arguments made in APA's brief undergird the Court's privacy ruling and appear to have been instrumental in the Court's Equal Protection ruling. APA's brief is the first one cited in a footnote of the decision as well as the first one mentioned in the decision text.