A Provo ordinance outlawing sexual solicitations is unconstitutional and could prohibit a husband and wife from discretely whispering in public about engaging in sex later, the Utah Supreme Court has ruled.
In a 3-2 decision released Tuesday, justices overturned the conviction of Rulon Duane Willden, who was arrested after writing his name and telephone number on walls in public restrooms along with a message soliciting homosexual encounters. In doing so, they invalidated the ordinance under which Willden was arrested, saying it violates the U.S. Constitution's First Amendment guarantees of free speech."No matter how we strain, we cannot find a legitimate construction of the ordinance's clear and explicit language that will bring it within constitutional limits," said the court's decision, written by Justice Michael Zimmerman.
Chief Justice Gordon R. Hall and Justice Richard C. Howe dissented, saying the ordinance applies only to unlawful sexual conduct in public between people not married.
"The ordinance obviously was not intended to prohibit lawful communication between spouses, nor does it sweep within its ambit protected expression," wrote Howe.
Provo Mayor Joe Jenkins said the law was basically used by the city in arresting homosexuals soliciting sex in several parks, specifically North Park.
The city no longer arrests individuals on that ordinance, instead arresting them on a state lewdness statute. Jenkins said the city will reexamine the code and bring it into line.
Willden was arrested after a Provo police officer called the number found in a public restroom and arranged a meeting with him. Willden was convicted by an 8th Circuit judge, and the conviction was upheld by the 4th District Court.
Provo officials had argued that the ordinance, if properly interpreted, does not violate the First Amendment.
But the majority opinion said the ordinance prohibits a wide variety of solicitations defined as "sexual conduct."
"To our knowledge, this state has no statutes that purport to make the wide variety of conduct . . . illegal between married couples or, for that matter, between unmarried adults, when carried out in private," Zimmerman wrote. "It follows that a municipality's flat ban on the public solicitation of all such private activity is a content-based speech regulation that runs afoul of the First Amendment."