Lesbians And Gays Sue Arkansas
Arkansas Sued Over Sodomy Law
The Progressive, August 1998 v62 n8 p16(1)
By Suzi Parker
Seven gays and lesbians are suing Arkansas, charging that the states sodomy law
Arkansas is one of six states that outlaw the consensual sexual relations of only
lesbian and gay adults. It says homosexual anal and oral sex are misdemeanor crimes that
carry maximum penalties of one year in jail and a $1,000 fine.
"This law creates a second-class status for lesbians and gay men, criminalizing
intimate, sexual behavior that is perfectly legal for non-gay people," says Suzanne
Goldberg, a staff attorney with Lambda Legal Defense Fund, a New York advocacy group that
is sponsoring the suit.
Some judges in other states have used sodomy laws as a basis for denying child custody
to homosexual parents. In Virginia, a mother lost her two-year-old to the childs
grandmother when a court determined she was unfit because of her sexuality.
Lambda intends to show that the Arkansas sodomy law violates privacy rights and the
constitutional guarantee of equal protection under the law. The group has helped with
successful legal challenges to sodomy laws in Tennessee, Kentucky, and Montana.
The state of Arkansas asked a Pulaski County judge to dismiss the case, arguing that
the plaintiffs have no right to sue the attorney general and the county district attorney
in their official capacities since the plaintiffs lack specific complaints against them.
The state also argued that the suit should be dismissed because the plaintiffs
havent been arrested for violating the homosexual sodomy law. The attorney
generals office could find no one prosecuted for breaking the law in private in the
last seventy years.
"Whether these laws are being enforced or not, there is always the chance they
will be enforced if they stay on the books," says Rebecca Isaacs, political director
for the National Gay and Lesbian Task Force in Washington, D.C.
On June 23, Judge Collins Kilgore announced that the challenge to the states
sodomy ban could proceed. "This court finds that plaintiffs have the standing [to
sue] where the challenged act affects conduct so intimate and private," he wrote.
Kilgores decision also found it unacceptable that Arkansas lesbians and gays have
"to live and suffer the harms associated with continuing threats of criminal
prosecution under a constitutionally suspect scheme."
The U.S. Supreme Court has yet to concur that such a ban is "constitutionally
suspect." In 1986, a Supreme Court ruling in Bowers v. Hardwick allowed state
bans on private homosexual sex acts to continue. The Bowers case stemmed from a lawsuit by
a Georgia man, Michael Hardwick, arrested for having consensual sex in his bedroom with
another man. Although the local district attorney refused to prosecute, Hardwick sued to
test the constitutionality of the law. Like the plaintiffs in the Arkansas case, Bowers
claimed he feared future police action because he was a practicing homosexual. In a 5-to-4
vote, the Court upheld the Georgia statute banning homosexual oral and anal sex. The Court
argued that nothing in the Constitution gives any evidence that citizens have the right to
engage in homosexual sodomy.
But the attorneys for the seven plaintiffs take hope from a 1996 Supreme Court
decision. In Romer v. Evans, the Court--by a 6-to-3 vote--found unconstitutional a
Colorado law that prohibited cities from banning discrimination based on sexual
orientation. Justice Anthony Kennedy wrote in the Courts majority opinion that the
state distinguished homosexuals as "unequal to everyone else."
"For the first time, the Court established that gays and lesbians are entitled to
equal protection under the law," says David Ivers, an Arkansas attorney representing
the plaintiffs. His clients hope to build on that precedent in Arkansas.
For more information, contact Lambda at (212) 809-8585.
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