State, Gays Argue Over Sodomy Law
Record, June 28, 2002
Box 1359, Fort Smith, AR 72902
By Rob Moritz, Times Record, firstname.lastname@example.org
LITTLE ROCK—The state law against sodomy violates
rights to privacy and equal protection guaranteed by the state constitution,
the state Supreme Court was told Thursday.
Susan Sommer, attorney for the Lambda Legal Defense and Education Fund of
New York City, said the 1977 statute is illegal because it targets gay men and
Assistant Attorney General Jill Moore argued the law is not biased against
homosexuals and that the constitution does not guarantee a fundamental right
of privacy that includes engaging in homosexual sodomy. She also contended
that the law could only be challenged in defense of a prosecution.
The arguments came in the state’s appeal of an April 2001 ruling by
Pulaski County Circuit Judge David Bogard that the law banning sodomy between
people of the same sex is unconstitutional. Bogard said the Legislature erred
when it barred consensual, noncommercial sexual activities among people of the
Sodomy of any kind was illegal in the state until the Legislature in 1977
changed the law to outlaw the practice only among people of the same sex.
Seven Arkansans who say they are homosexual filed the lawsuit to argue that
the law put them in fear of being charged or convicted or losing their jobs or
professional licenses. Moore said that because the law has never been
enforced, the seven people could not argue that there is a threat of their
being arrested. The Arkansas law, a Class A misdemeanor, carries a penalty of
up to $1,000 fine and up to a year in jail.
Sommer said the state’s argument that no one had ever been prosecuted
under the law was no assurance that no one would be in the future.
During the oral arguments, Moore described the law as "a dead
letter," when noting that it had never been enforced. Associate Justice
Robert Brown asked why it is still on the books, and Associate Justice
Annabelle Clinton Imber asked why it wasn’t being enforced. Moore said it is
up to the Legislature to remove the law and that prosecutors are too busy to
seek out violators of the law and prosecute them.
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