Last edited: February 14, 2005

Lesbians And Gays Sue Arkansas

Arkansas Sued Over Sodomy Law

The Progressive, August 1998 v62 n8 p16(1)

By Suzi Parker

Seven gays and lesbians are suing Arkansas, charging that the state’s sodomy law is unconstitutional.

Arkansas is one of six states that outlaw the consensual sexual relations of only lesbian and gay adults. It says homosexual anal and oral sex are misdemeanor crimes that carry maximum penalties of one year in jail and a $1,000 fine.

"This law creates a second-class status for lesbians and gay men, criminalizing intimate, sexual behavior that is perfectly legal for non-gay people," says Suzanne Goldberg, a staff attorney with Lambda Legal Defense Fund, a New York advocacy group that is sponsoring the suit.

Some judges in other states have used sodomy laws as a basis for denying child custody to homosexual parents. In Virginia, a mother lost her two-year-old to the child’s grandmother when a court determined she was unfit because of her sexuality.

Lambda intends to show that the Arkansas sodomy law violates privacy rights and the constitutional guarantee of equal protection under the law. The group has helped with successful legal challenges to sodomy laws in Tennessee, Kentucky, and Montana.

The state of Arkansas asked a Pulaski County judge to dismiss the case, arguing that the plaintiffs have no right to sue the attorney general and the county district attorney in their official capacities since the plaintiffs lack specific complaints against them. The state also argued that the suit should be dismissed because the plaintiffs haven’t been arrested for violating the homosexual sodomy law. The attorney general’s office could find no one prosecuted for breaking the law in private in the last seventy years.

"Whether these laws are being enforced or not, there is always the chance they will be enforced if they stay on the books," says Rebecca Isaacs, political director for the National Gay and Lesbian Task Force in Washington, D.C.

On June 23, Judge Collins Kilgore announced that the challenge to the state’s sodomy ban could proceed. "This court finds that plaintiffs have the standing [to sue] where the challenged act affects conduct so intimate and private," he wrote. Kilgore’s decision also found it unacceptable that Arkansas lesbians and gays have "to live and suffer the harms associated with continuing threats of criminal prosecution under a constitutionally suspect scheme."

The U.S. Supreme Court has yet to concur that such a ban is "constitutionally suspect." In 1986, a Supreme Court ruling in Bowers v. Hardwick allowed state bans on private homosexual sex acts to continue. The Bowers case stemmed from a lawsuit by a Georgia man, Michael Hardwick, arrested for having consensual sex in his bedroom with another man. Although the local district attorney refused to prosecute, Hardwick sued to test the constitutionality of the law. Like the plaintiffs in the Arkansas case, Bowers claimed he feared future police action because he was a practicing homosexual. In a 5-to-4 vote, the Court upheld the Georgia statute banning homosexual oral and anal sex. The Court argued that nothing in the Constitution gives any evidence that citizens have the right to engage in homosexual sodomy.

But the attorneys for the seven plaintiffs take hope from a 1996 Supreme Court decision. In Romer v. Evans, the Court--by a 6-to-3 vote--found unconstitutional a Colorado law that prohibited cities from banning discrimination based on sexual orientation. Justice Anthony Kennedy wrote in the Court’s majority opinion that the state distinguished homosexuals as "unequal to everyone else."

"For the first time, the Court established that gays and lesbians are entitled to equal protection under the law," says David Ivers, an Arkansas attorney representing the plaintiffs. His clients hope to build on that precedent in Arkansas.

For more information, contact Lambda at (212) 809-8585.

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