Last edited: February 14, 2005

Arkansans Supreme Court Hears Gay Sex Challenge, October 31, 2001

Little Rock—Lambda Legal Defense and Education Fund, on behalf of seven Arkansas lesbians and gay men, is urging the Arkansas Supreme Court to strike down the state’s ban on sex between consenting adults of the same sex.

In its legal brief, Lambda argues that it is wrong for the government to single out gay people with a criminal law it does not apply to non-gay people and to try to dictate highly intimate, personal relationships.

Lambda Supervising Attorney Susan Sommer said, "At a time when people in our country seek to strengthen national unity, Arkansas should not have a law that stigmatizes any group as second-class citizens and intrudes on their intimate lives for no good reason."

Sommer, who successfully argued the case, Picado v. Jegley, before a state circuit court, added, "We hope that the Supreme Court puts an end to this biased law once and for all." The lower court struck down the law in March. The state is appealing that decision.

The seven plaintiffs are lesbian and gay state residents and include a teacher and mother, Elena Picado, as well as a minister, a small business owner, and a nurse. They object to being branded as criminals and say Arkansas’ law fuels anti-gay prejudice.

The law bans a wide range of physical intimacy between same-sex couples, with punishment of up to one year in jail and a fine of $1,000. Under the law originally enacted in 1838, sexual relations were similarly restricted for all couples, gay and non-gay, but that law was repealed in 1975. Then, in 1977, the legislature turned around and enacted the current law targeting only same-sex couples.

The National and Arkansas chapter of the American Psychological Association (APA) and the National and Arkansas chapter of the National Association of Social Workers (NASW) are supporting the legal challenge, as is a group of religious leaders and legal scholars.

The APA and NASW amicus brief notes that Arkansas’ law criminalizes sexual intimacy that "is a normal part of the intimate relationships of Americans, and is engaged in by opposite-sex as well same-sex couples. By banning such sexual intimacy by persons of the same sex, [the state’s law] directly impinges on these fundamental intimate relationships."

The brief from the religious leaders states "that private, consensual sexual conduct is a matter of individual, personal conscience, and not a matter for state prohibition through the criminal laws." Among the clergy included in that brief is the Episcopal Bishop of the Diocese of Arkansas.

In other states, including Georgia, Kentucky, Montana, and Tennessee, state courts have struck down so-called sodomy laws. Until the 1960’s, all states criminalized oral and anal sex. Now just three, Kansas, Oklahoma, and Texas, have anti-gay laws like that of Arkansas, while 10 others criminalize private oral and anal sex for both gay and non-gay consenting adults.

Lambda also is challenging Texas’ "Homosexual Conduct Law" in a case stemming from the arrest of two Houston men having sex at home.

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