Barnard argues in Friday's filing that the recent Texas case is just the latest in a long line of Supreme Court decisions protecting the privacy rights of U.S. citizens. Starting in 1965 with the rejection of a Connecticut law that prohibited distribution of contraceptives and counseling for their use, the nation's highest court has continued to give "substantial protection to adult persons in deciding how to conduct their lives in matters pertaining to sex."

And if two consenting homosexual adult males are legally allowed to avoid unwanted state intrusion into their private matters, Barnard argues, so must three — or more — consenting adults of any sexual preference be immune from prosecution.

"Homosexuals have a constitutional right to engage in intimate sexual acts without state intrusion, therefore, heterosexuals have a similarly constitutionally protected right," the filing states.

Such protections should only be extended to consenting adults who are participating in private and non-commercial activities, Barnard states. Within those parameters, he maintains, the state has no compelling interest to criminalize the behavior.

State attorneys, however, disagree. In a recent filing before the Utah Supreme Court, in the case of well-known polygamist Tom Green, the state offered four reasons for the ban on polygamy. Among them are the numerous laws based on the long-standing American culture of monogamy, the high number of polygamous families that rely on public assistance and the possible exploitation of young girls and women in polygamous cultures.

Barnard strikes down each of the reasons in Friday's filing, saying none are compelling enough to "justify the nullification of a person's constitutional right to associate based upon a deeply held religious belief."

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E-mail: awelling@desnews.com