Last edited: February 14, 2005

New York Gay Rights Group Back In Court To Topple Arkansas Sodomy Law

Arkansas Democrat Gazette, November 2, 1999
Box 2221, Little Rock, AR, 72203
Fax 501-372-3908

By Seth Blomeley, Arkansas Democrat-Gazette

Arkansas Attorney General Mark Pryor began another legal round Monday in the nearly 2-year-old fight to keep intact a law that state and local officials have never enforced and say they won’t enforce.

At issue is a 22-year-old law banning private homosexual sodomy.

Pryor’s office is "expending a lot of resources and putting up a big fight to keep this law on the books. They’re expending a lot of money," Ruth Harlow, attorney for the Lambda Legal Defense and Education Fund, said after Monday’s preliminary hearing.

Assistant Attorney General Tim Gauger declined to comment as he left court Monday and referred questions to Pryor’s spokesman, Michael Teague.

Pryor, who inherited the case after taking office in January, didn’t want to comment, Teague said. Pryor feels the same way about handling the homosexual sodomy law as the state law banning partial birth abortion, his spokesman said.

"We’ll defend the statute," Teague said. "That’s our role. [Pryor] feels strongly about not clouding issues with his personal beliefs."

Teague noted that Pryor is only spending money on salaried employees to work on the case.

Lambda, a New York homosexual rights group, claims Arkansas’ law violates constitutional protections for privacy, saying what two consenting adults do in private isn’t the state’s business.

Also, the group claims the law, Arkansas Code Annotated 5-14-122, violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The state law only addresses anal and oral sexual contact between homosexuals.

Such conduct between heterosexuals is legal.

Monday’s hearing focused on whether Lambda -- which represents seven Arkansas homosexuals -- can sue Pryor. The state constitution bars suits against the state.

Harlow argued that since Pryor, not the state, is the defendant, sovereign immunity doesn’t apply.

Gauger said that Pryor can’t be a defendant because there’s no evidence he’s enforced or threatened to enforce the homosexual sodomy law.

Pulaski County Circuit Judge David Bogard said he’ll issue a decision in about two weeks. Any ruling likely will be appealed before a trial date can be set.

Bogard is the second trial judge to hear the case. The suit was filed Jan. 28, 1998, in Pulaski County Chancery Court.

At the time, former Attorney General Winston Bryant said his office must defend all challenges to state law, except those that are "outrageously unconstitutional." Bryant chose to fight the challenge.

Bryant focused his defense on legal technicalities, not on any merits the homosexual sodomy law might have. Pryor is doing the same.

When Chancellor Collins Kilgore refused to dismiss the case, Bryant appealed to the Supreme Court. That court also refused to dismiss the case but ordered it transferred to Circuit Court.

Only three other states, Kansas, Oklahoma and Texas, have laws prohibiting private homosexual sodomy. Lambda is waging a legal battle in Texas, similar to the suit in Arkansas.

In the 1990s, appeals courts in four states, Kentucky, Tennessee, Montana and Missouri, have thrown out such laws.

Twelve states outlaw heterosexual and homosexual sodomy.

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