Arkansas Anti-Sodomy Law Challenge Should Go Forward, Lawyer Says
May 14, 1999
P.O. Box 334, Memphis, TN 38101
The Associated Press
Arkansas prosecutors wanting freedom to prosecute the state's anti-sodomy law should
not also be given immunity from a lawsuit challenging it, says a lawyer fighting a ban on
"This law . . . says you can't do what your non-gay neighbors do," lawyer
Suzanne Goldberg told the state Supreme Court on Thursday.
Goldberg, with the Lambda Legal Defense and Education Fund of New York, likened the law
to the "sword of Damocles," ready to drop on her clients at any time.
Seven people filed suit last year in Pulaski County Chancery Court, claiming the
Arkansas anti-sodomy law singles them out - it applies only to homosexuals. Goldberg says
Arkansas is one of only a few remaining states that has a law prohibiting sodomy between
But state lawyers say Arkansas is protected from such a lawsuit by sovereign immunity
and the fact that there has been no legal action taken or threatened against the seven
plaintiffs. Therefore, said assistant attorney general Timothy Gauger, the case is moot.
Justices Robert L. Brown and Tom Glaze questioned Gauger on the constant threat of
prosecution under the law.
"How are they going to get some relief?" Glaze asked Gauger during the
"I think they can get some relief if they show an expressed" intent of
prosecution, Gauger said. He said the "integrity of the judicial process"
dictates that someone must be prosecuted or threatened with prosecution before they can
launch such constitutional challenges.
Goldberg said the law allows such pre-emptive lawsuits.
"The law is clear that plaintiffs don't have to wait to have their world turned
upside down before" challenging such laws, she said.
Gauger also argued the law has been enforced only in cases that involved sodomy in
public places. That, he said, provides a "common-sense notion" that homosexuals
should not fear being arrested in their homes.
Goldberg said the stigma attached to such a law - even when it is not enforced - is
hurtful to her clients.
The state's sodomy law carries a penalty of up to a year in jail and a fine of up to
$1,000. Last June, a Pulaski County chancellor said the challenge to the sodomy ban could
A U.S. Supreme Court ruling 13 years ago upheld a Georgia sodomy law. But state courts
in Tennessee, Kentucky and Montana have since thrown out laws prohibiting consensual
homosexual sex behind closed doors.
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