Last edited: February 14, 2005

Judge refuses to nix lawsuit challenging sodomy law

Southwest Times Record, June 24, 1998
Box 1359
Fort Smith, AR 72902
Fax 501-784-0413

LITTLE ROCK -- Chancellor Collins Kilgore refused Tuesday to dismiss a lawsuit challenging an Arkansas law barring homosexual sex.

The state attorney general's office had asked that the lawsuit be dismissed and Kilgore conducted a hearing in the case last month.

The suit was filed by the Lambda Legal Defense and Education Fund of New York. The organization said that the sodomy law created a second-class status for homosexuals. The state said the law doesn't need to be struck from the books because it isn't being enforced.

The law outlaws homosexual, anal and oral sex and carries maximum penalties of one year in jail and a $1,000 fine.

"We are pleased with the ruling because the court recommended that the plaintiffs should have their day in court to challenge the harm they suffer under this unconstitutional law,'' Suzanne B. Goldberg, Lambda attorney, said.

''As we argued, the plaintiffs live under the constant threat of prosecution,'' she said. ''There is nothing in Arkansas sodomy law that prevents a prosecutor from waking up tomorrow morning and arresting a gay or lesbian for engaging in consensual sexual intercourse with a loved one.''

The state's motion to dismiss was filed in February. There is no controversy to justify the lawsuit, the attorney general's office said.

Kilgore said Arkansas case law does not directly answer the question raised by the state. But he cited a Supreme Court decision that said a licensed fisherman had standing to challenge a regulation limiting the size of fish that could be taken from Lake Maumelle because the regulation would have affected his rights.

''Because the Supreme Court was willing to find standing in a case wherein the rights affected deal with the narrow issue of the limitation of the size of fish that could be taken from a lake, this court finds that plaintiffs have standing where the challenged act affects conduct so intimate and private,'' the judge wrote.

Arkansas is one of six states with sodomy laws limited specifically to homosexual conduct. The others are Texas, Oklahoma, Kansas, Missouri and Maryland, Goldberg said.

Fourteen states have broader sodomy laws that also cover heterosexual contact.

A U.S. Supreme Court ruling 12 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.

NOTE: Unfortunately, both major party candidates for attorney general also oppose repeal of the sodomy law as it applies to consenting adults. You can contact the current attorney general about his support of the sodomy law at:

Attorney General Winston Bryant (D)
200 Catlett-Prien Tower
323 Center Street
Little Rock, Arkansas 72201
501-682-1323 (1-800-448-3014)

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