‘77 Arkansas Sodomy Law Struck Down
State Supreme Court hands Lambda Legal total victory
Gay City News,
July 12-18, 2002
New York, NY
By Arthur S. Leonard
In a belated Independence Day present to lesbian and gay residents of
Arkansas, that state’s Supreme Court, by a 5 to 2 vote, issued a ruling on
July 5 holding unconstitutional the state law criminalizing oral and anal sex
between persons of the same sex. The court’s decision invalidated the law
based on two provisions of the state constitution, one protecting individual
privacy and the other guaranteeing equal protection of the laws.
The ruling came in a lawsuit filed in 1998 by Lambda Legal Defense and
Education Fund on behalf of seven gay residents of the state, none of whom had
been prosecuted under the sodomy law but each of whom declared publicly that
they have engaged in illegal sexual activity in private with consenting adult
partners and would continue to do so. On that basis, they claimed that they
were in danger of prosecution under an invalid criminal statute, and subject
to stigmatization and discrimination as a result.
The first big hurdle in bringing such a case is to get the court to
consider it on the merits, and several years of the lawsuit were consumed by
argument over whether the plaintiffs had "standing" to seek a
declaration that the law was unconstitutional. The state argued that there was
no record of anybody being prosecuted under the statute for consensual sex in
private since its enactment in 1977, when it replaced a prior sodomy law that
applied to heterosexuals and homosexuals alike and had much more severe
penalties. Consequently, the plaintiffs had no reasonable basis for fearing
prosecution, according to the state.
In rejecting that argument in her opinion for the state’s high court,
Justice Annabelle Clinton Imber accepted the plaintiffs’ argument that as
long as the law remained on the books they were stigmatized as criminals and
could suffer a variety of consequences, including discrimination by the state
in areas such as employment and parental rights.
"In the past decade, three different attempts to repeal the statute
have failed, sending a signal to prosecutors of the statute’s continuing
vitality," Imber wrote. "The State has refused to disavow
enforcement of the statute and is, in fact, vigorously defending the legality
of the statute in the present action. In addition, albeit for public or
nonconsensual conduct, there have been prosecutions under Arkansas’s sodomy
statute as recently as 1988. In addition, our sodomy statute has been used
outside the criminal context in ways harmful to those who engage in same-sex
conduct prohibited by the statute. Clearly this statute is not moribund, and
the State has not foresworn enforcement of it."
In a concurring opinion, Justice Robert L. Brown drove home this point even
more strongly, writing, "I agree completely that the State has placed the
plaintiffs in a catch-22 situation. According to the State, they are dubbed
criminals but have no recourse in the courts to correct this status. The State’s
counsel at oral argument contended that the sodomy statute is a ‘dead letter’
and that no prosecutor currently enforces it. Nor has it been enforced for
decades, counsel adds. In the same breath, she urges that the statute must be
kept on the books and that the plaintiffs should be prevented from challenging
it, even while the statute makes them criminals. It is indisputable that the
sodomy statute hangs like a sword of Damocles over the heads of the
plaintiffs, ready to fall at any moment. The idea of keeping a criminal
statute on the books which no one wants to enforce is perverse in itself. This
brands the plaintiffs with a scarlet letter that the State contends they
should have no chance to contest in the courts of this State. The State’s
position comes perilously close to complete inconsistency and smacks of a
no-lose proposition for the government and a no-win situation for the
plaintiffs. Other sister states have refused to countenance this argument and
have permitted attacks on their sodomy statutes by plaintiffs who admit to the
conduct but who have not been arrested."
Brown’s reference to "other sister states" was quite
significant, since when it came to evaluating the constitutionality of the
sodomy law on the merits, the court repeatedly referred to and quoted from
recent decisions by appellate courts in Montana, Kentucky, Tennessee, and
Georgia, all invalidating sodomy laws by reference to state constitutional
privacy arguments, and in some cases equal protection arguments as well.
Brown, more than Imber, noted a developing trend in state courts to find
criminal treatment of private sexual expression invalid, commenting, "The
Georgia reversal is symptomatic of the national sea change in attitude towards
statutes such as these."
Imber strongly asserted the unconstitutionality of the statute, broadly
proclaiming the right of Arkansas citizens to protection from government
interference with their privacy.
"In considering our constitution together with... statutes, rules, and
case law... it is clear to this court that Arkansas has a rich and compelling
tradition of protecting individual privacy and that a fundamental right to
privacy is implicit in the Arkansas Constitution." Imber wrote.
"...[We] hold that the fundamental right to privacy implicit in our law
protects all private, consensual, noncommercial acts of sexual intimacy
between adults. Because [the sodomy law] burdens certain sexual conduct
between members of the same sex, we find that it infringes upon the
fundamental right to privacy guaranteed to the citizens of Arkansas."
Since the right to privacy was found to be "fundamental," any
statute that "burdens" it is subject to "strict scrutiny,"
under which it could only be upheld if the government had a compelling
justification for it. Here, the court found that the state actually had
provided no justification for the invasion of privacy at all.
"According to the circuit court’s order in this case, appellant
concedes that the State can offer no compelling state interest sufficient to
justify the sodomy statute," Imber continued. "Therefore, Arkansas’s
sodomy statute... is unconstitutional as applied to private, consensual,
noncommercial, same-sex sodomy.
The court could have stopped at this point, but instead discussed the
alternative ground for attacking the statute: equal protection. The
challengers argued that by making it criminal for gay people to engage in
conduct that was freely allowed to heterosexuals, the state had discriminated
on the basis of sex and sexual orientation. If this were found to be sex
discrimination, under Arkansas precedents the state would be held to a
heightened level of judicial review in defending the law. The standard of
review for sexual orientation discrimination has yet to be established by
Arkansas’s highest court.
The court found that there was a valid claim of sex discrimination, but
proceeded to analyze the case assuming that the least demanding standard of
judicial review would be placed on the state. Even so, the court found the law
wanting even under that most permissive standard.
"[The State] contends that the prohibitions of the statute are
justified by the State’s legitimate interest in protecting public
morality," Imber wrote. "Appellees counter that long-standing,
negative views about a group of people do not amount to proper justification
for differential treatment... We agree that the police power may not be used
to enforce a majority morality on persons whose conduct does not harm others.
The Arkansas Equal Rights Amendment serves to protect minorities at the hands
of majorities... [The] State has a clear and proper role to protect the public
from offensive displays of sexual behavior, to protect people from forcible
sexual contact, and to protect minors from sexual abuse by adults. However,
criminal statutes, including those proscribing indecent exposure, rape,
statutory rape, and the like, are in existence to protect the public from
precisely such harms."
Imber continued that the state "has not offered sufficient reasoning
to show that notions of a public morality justify the prohibition of
consensual, private intimate behavior between persons of the same sex in the
name of the public interest. There is no contention that same-sex sodomy
implicates the public health or welfare, the efficient administration of
government, the economy, the citizenry, or the promotion of the family unit.
We have consistently held that legislation must bear a real or substantial
relationship to the protection of public health, safety and welfare, in order
that personal rights and property rights not be subjected to arbitrary or
oppressive, rather than reasonable, invasion."
Thus, the statute was unconstitutional on equal protection grounds.
Brown’s concurrence focused on emphasizing the spatial privacy aspect of
the case—that the plaintiffs were arguing for the right to engage in sexual
activity with their chosen partners in private. He pointed out that a prior
opinion of the court upholding the constitutionality of the previous sodomy
law concerned a prosecution for engaging in sexual activity in a parked car,
which he characterized as "public activity." There was a dissenting
opinion by two members of the court, but it was entirely concerned with the
issue of the plaintiffs’ standing to bring the case. These justices argued
that as nobody had been prosecuted recently under the law for consensual
private activity, there was no real threat of prosecution against the
One difference between the opinion for the court and the concurrence by
Brown had to do with the final outcome of the case. For a majority of the
court, the correct result was to declare that the sodomy law was
unconstitutional as applied to adult, consensual private sex. Brown pointed
out that there are other statutes to take care of non-consensual or public sex
cases, and therefore there is no need to keep the statute on the books at all.
Either way, with Arkansas’s criminal sodomy law essentially rendered
invalid, there remain only three states with statutes specifically targeting
gay people for criminal prosecution. In one of those, Texas, a cowardly state
supreme court has refused to step in and reverse a retrograde court of appeals
ruling that upheld the same-sex sodomy law on morality grounds. Perhaps this
decision from neighboring Arkansas will help the Texas legislature see the
wisdom of repealing the sodomy law, as the Arizona legislature recently did in
response to privacy arguments.
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