Last edited: February 14, 2005

Arkansas Sodomy Law Struck Down / Network, March 26, 2001

By Matt Alsdorf

SUMMARY: If oral and anal intercourse are legal for opposite-sex couples, they have to be legal for gay couples, too, according to an Arkansas judge.

The Arkansas law that banned consensual same-gender sex was thrown out Friday by a judge who said it was unconstitutional for the state to make certain acts off-limits for gays and lesbians while allowing them for heterosexuals.

"[A]n adult’s right to engage in consensual and noncommercial sexual activities in the privacy of that adult’s home is a matter of intimate personal concern which is at the heart of the right to privacy in Arkansas," wrote Pulaski County Circuit Court Judge David Bogard, according to the Lambda Legal Defense and Education Fund, the group that brought the case on behalf of seven gay and lesbian Arkansas residents. "[T]his right should not be diminished or afforded less constitutional protection when the adults engaging in that private activity are of the same gender."

The 1977 law provided for punishment of up to one year in jail and a fine of $1,000 for oral and anal sex between two people of the same gender. It did not apply to heterosexual couples.

The Associated Press reports that the law had never been enforced.

But Ruth Harlow, Lambda’s legal director, said the ruling was nonetheless important, since it removed the stigma of "second-class citizenship" that hung over the heads of Arkansas gays and lesbians.

"[T]he Sodomy Statute simply does not have equal application, it unjustifiably discriminates, and thus is unconstitutional" under the state constitution, Bogard wrote, according to Lambda.

"The people of Arkansas have the right to legislate on issues involving morals, but homosexuality is not only a question of morals," the AP quoted Bogard as writing.

A decision on whether to appeal has not yet been made by the Arkansas attorney general’s office, according to the AP.

If Bogard’s ruling stands, Lambda says, it will leave only three states — Texas, Kansas, and Oklahoma — with gay-specific sodomy laws. Roughly a dozen other states have sodomy laws that apply to both same-sex and opposite-sex couples.

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