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Supreme Court Invalidates Same-Sex Importuning Law

2001-0333. State v. Thompson, 2002-Ohio-2124.
Ashtabula App. No. 99-A-0070. Judgment reversed.
F.E. Sweeney and Cook, JJ., concur.
Moyer, C.J., Resnick and Lundberg Stratton, JJ., concur in syllabus and judgment.
Douglas, J., concurs in judgment and in the concurrence of Justice Pfeifer. Pfeifer, J., concurs separately.
Opinion: http://www.supremecourt.ohio.gov/rod/newpdf/0/2002/2002-Ohio-2124.pdf

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(May 15, 2002) The Supreme Court voted 7-0 to strike down an Ohio statute prohibiting same-sex solicitation, finding that the law ran counter to constitutional equal protection guarantees.

The so-called importuning statute read that "no person shall solicit a person of the same sex to engage in sexual activity...[knowing] such solicitation is offensive to the other person, or is reckless in that regard."

Eric Thompson was charged with violating the statute after he offered to perform a sex act on another man. Thompson asserted that the law discriminated against homosexuals, in violation of the federal and state constitutions.

The trial court rejected Thompson's argument and found him guilty. The 11th District Court of Appeals affirmed, reluctantly applying a 1979 Supreme Court decision holding the statute constitutional.

Thompson appealed to the Supreme Court seeking a reversal of the appeals court's decision; attorneys for the state of Ohio joined him in urging the court to more fully explain its previous ruling.

In the court's lead opinion, Justice Deborah L. Cook wrote, "We find that the statute is facially invalid as a content-based restriction on speech, which by extension violates the equal protection guarantees of both the United States and Ohio constitutions."

Statutes that set a group of people apart from another are said to include a classification. In weighing an equal protection challenge to a statutory classification, courts look at the classification's relationship to its purported governmental purpose. Arbitrary statutory classifications are considered discriminatory.

"Although the parties contend that the [importuning statute's] classification is based on sexual orientation, we find that characterization…erroneous," Justice Cook wrote.

Instead, she wrote, the statute "seeks to handicap the expression of particular content - offensive same-sex solicitations - while permitting offensive solicitations between opposite sexes."

"The plain language of the statute dictates that any person - a heterosexual, homosexual or bisexual male or female - who solicits a person of the same sex to engage in sexual activity would be guilty of importuning, if the offender knowingly offended the solicitee or was reckless in that regard."

When a statute affects a fundamental right - such as freedom of speech, as the importuning statute did - courts apply the most rigid equal protection review, called "strict scrutiny analysis."

Justice Cook explained that the analysis "demands that a discriminatory classification be narrowly tailored to serve a compelling state interest," which could not be said of the importuning statute.

"The state has not narrowly tailored [the statute] to serve a compelling state interest. Curtailing the risk of violent responses to offensive solicitations [which was the rationale behind the statute] - as opposed to prohibiting offensive sexual solicitations of a particular content - could have been achieved by prohibiting all offensive solicitations of sexual activity."

"The existence of such an adequate content-neutral alternative undercuts any notions that the discriminatory classification…is necessary."

In a separate concurring opinion, Justice Paul E. Pfeifer asserted that the lead opinion was incorrect in undertaking a strict-scrutiny test analysis.

The importuning statute failed its equal protection test, Justice Pfeifer wrote, because it could not even survive even the mildest test, which is called rational-basis review. Under that standard, the statutory classification must be rationally related to a legitimate government purpose.

"There is no rational reason for the state to treat people who seek to engage in homosexual activity as criminals when it does not treat people who seek to engage in heterosexual activity as criminals," Justice Pfeifer wrote.

"The obvious intent of [the statute] is to restrict homosexual activity, not speech, as the lead opinion would have us believe" just as the obvious intent of the statute prohibiting "the solicitation of another person to engage in sexual activity for hire is to restrict prostitution, not speech."

In response, Justice Cook wrote that Justice Pfiefer's "reading of the statute ignores what the statute actually proscribes."

"Nothing in the statutory language criminalizes homosexual activity; rather, the statute criminalizes only same-sex solicitation…Even a heterosexual could be guilty…if he or she spoke words constituting a same-sex solicitation."

Furthermore, she added, "even if [the statute] did not implicate a fundamental right, requiring strict scrutiny, if this court were to employ rational-basis review, it would require this court to uphold the statute."

She explained: "The legislature found that same-sex solicitation is more likely to induce violence than solicitations between members of opposite genders. Legislatures are permitted to so generalize in their collective decision-making. Because courts may not indulge any personal intuition to the contrary, almost any classification survives 'mere rationality' review. The classification must be upheld so long as it is conceivable that the classification bears a rational relationship to a legitimate governmental objective."

"While the generalization underlying the classification may not be one that any member of this court would endorse, our role is to accept the legislature's proposition unless Thompson negates 'every conceivable basis which might support it' [as required by U.S. Supreme Court precedent]."

Because Thompson had not done so, Justice Cook asserted, the court could not find the statute arbitrarily discriminatory under a rational-basis review.

Thomas L. Sartini, Ariana E. Tarighati and Angela M. Scott, 440.576.3664, for the state of Ohio.

Marie Lane, 440.998.2628, for Eric R. Thompson.