Last edited: February 14, 2005

Fight Against State Sodomy Law Set for Pulaski County Hearing

Arkansas Democrat Gazette, November 28, 2000
Box 2221, Little Rock, AR 72203
Fax 501-372-3908

By Traci Shurley, Arkansas Democrat-Gazette

A two-and-a-half-year legal battle over an Arkansas law that makes same-sex sodomy a crime will soon be left up to a Pulaski County Circuit Court judge to decide.

Both sides in the civil lawsuit, originally filed against the Arkansas attorney general’s office and the state’s prosecutors by seven homosexual Arkansans, are scheduled to appear at a hearing Jan. 29 before Circuit Judge David Bogard to argue motions for summary judgment. The motions, which request the judge to make a finding on the legal filings in the case without a formal trial, were filed last week.

According to Arkansas Code 5-14-122, sodomy between people of the same sex is a Class A misdemeanor, which carries a punishment of up to one year in jail and a fine of up to $1,000.

In a motion for summary judgment filed Nov. 20, attorney Ruth E. Harlow, who represents the plaintiffs, argues that the law violates her clients’ right to equal protection guaranteed by the U.S. Constitution and the state constitution. Harlow also claims that the law violates the plaintiffs’ rights to privacy.

"The act thus creates two vastly different rules depending on who engages in these forms of intimate behavior," writes Harlow, an attorney for the New York City-based civil rights group Lambda Legal Defense and Education Fund. "Those who have a same-sex sexual attraction ... are forbidden this particular behavior in all contexts, no matter how committed their relationship or how private the setting. They are branded criminals and threatened with prosecution, while their heterosexual neighbors freely practice the same intimate contact without criminal penalty or stigma."

The seven plaintiffs first filed a lawsuit opposing the sodomy law in January 1998 in Pulaski County Chancery Court. In June 1999, as part of a ruling on a prejudgment appeal, the Arkansas Supreme Court ruled that the case should be transferred to circuit court. Also in that ruling, the Supreme Court rejected an argument by defendants that the lawsuit wasn’t worthy of a court’s attention because none of the plaintiffs had actually been charged under the law.

In a later ruling, the Supreme Court dismissed the attorney general’s office as a defendant in the lawsuit. Pulaski County Prosecuting Attorney Larry Jegley is now the sole defendant, representing prosecutors across the state.

In the motion for summary judgment filed on Jegley’s behalf last week, Assistant Attorney General Timothy Gauger said that there is no right to individual privacy contained in the Arkansas Constitution or the U.S. Constitution that would prevent a state from criminalizing homosexual sodomy.

Gauger writes that in order to prove that the law violates equal protection rights guaranteed under the U.S. and Arkansas constitutions, the plaintiffs must show that there is no "rational basis" for the law. They can’t do that, he says.

"Plaintiffs, and undoubtedly others, passionately believe that the act represents ‘backward thinking,’ ‘intolerance,’ and bad public policy, but plaintiffs have presented their complaint to the wrong forum," Gauger writes. "The people of the state through their elected representatives have expressed the view that homosexual sodomy is immoral, and under the federal and Arkansas constitutions, there is no barrier to state’s criminalization of such conduct."

Gauger wrote in a brief filed with last week’s motion that the pretrial information provided to his office by the plaintiffs falls short of being enough "to support a claim that the ‘threat’ of criminal prosecution of plaintiffs by defendant Jegley or any other member of the defendant class is sufficiently ‘real.’"

He also argued that the plaintiffs still haven’t shown a "justiciable" cause, one subject to court jurisdiction, exists in the case because they can’t show they’ve been threatened with enforcement of the law.

In answer to that assertion, Elena Picado and the six other plaintiffs in the case filed affidavits last week saying that even though they hadn’t been arrested, they felt harmed by the sodomy law.

Picado, 45, a Little Rock high school teacher, has lived with her female partner in Little Rock for eight years. She said in her affidavit that she became part of the lawsuit in order to challenge the state’s continued incursion on her rights. Picado said she is being "stigmatized as a criminal for normal human behavior — acting on my sexual orientation, a core part of my identity, and engaging in loving behavior with another adult."

Like other plaintiffs, Picado said that even though the law isn’t enforced, it is often referred to as justification for further discrimination.

"I particularly fear that, as has occurred with other gay parents in the state, the act will be used to diminish my parental rights to my own children, even without my being prosecuted or convicted," she wrote. "The act’s criminal condemnation fuels an atmosphere in Arkansas in which many believe that it is acceptable to discriminate against me and other gay people, and even target us for verbal abuse or violence."

According to the American Civil Liberties Union’s Web site, Arkansas is one of five states with sodomy laws targeting same-sex acts. The others are: Missouri, Kansas, Oklahoma and Texas. Courts in Missouri and Texas have ruled against the sodomy laws there. Texas is planning to appeal that decision, according to the ACLU.

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