Last edited: February 14, 2005

Court Mulls Arkansas Sodomy Law

PlanetOut News, January 30, 2001

SUMMARY: Both sides in Lambda’s lawsuit against the gays-only sex law are asking a judge to decide for himself whether something can be outlawed just because most people disapprove.

A legal challenge to Arkansas’ gay-and-lesbian-only sodomy law filed three years ago finally got a hearing in Pulaski County Circuit Court in Little Rock on January 29, where both sides asked Judge David Bogard to rule without a trial. Admitting that in the case known as "Picado v. Jegley" that, "I’ll be honest with you, I’m not sure what I’m going to do with this," Bogard said he’d make a decision within the next few weeks. However, even if he agrees with the seven gay and lesbian plaintiffs represented by Lambda Legal Defense and Education Fund that the law violates their rights to privacy and to equal treatment under the law, Bogard lacks the authority to issue an injunction barring enforcement of the law.

Arkansas’ sodomy law applied to heterosexual as well as homosexual oral and anal copulation until its repeal in 1975, but in 1977 the current statute was enacted applying solely to acts between people of the same sex. Violations can be punished by up to one year in jail and a fine of $1,000. Neither side can point to an instance in which the law was actually enforced, but the lawsuit names as defendant Pulaski County’s prosecutor (standing for all prosecutors) since enforcement is at prosecutors’ discretion. (Originally the lawsuit named the state’s Attorney General, until Bogard ruled against that.) The state has tried a variety of maneuvers to have the case dismissed, including arguing its own sovereign immunity to being sued and that prosecutors should not be sued since they have not enforced the statute, which have already required two decisions by the Arkansas Supreme Court.

The Law of "Moral Disapproval"

The seven Arkansas residents challenging the law are diverse in age and race and include teacher and mother Elena Picado, research analyst Robin White and minister Randy McCain. After the hearing, White said, "As a tax-paying, contributing citizen, I do not deserve to be called a criminal by my state just because of who I am." McCain said, "This law gives hate groups justification for what they do. [A declaratory judgment] would give us protection against persecution." In addition to the threat of criminal prosecution hanging over their heads, plaintiffs say the law is commonly used to justify firings from jobs, evictions from homes, and loss of children in custody disputes.

Lambda attorney Susan Sommer told the Associated Press before the trial that the statute "violates the right to equal protection because it singles out gay men and women for criminal punishment and stigma for engaging in the identical conduct that is free to their heterosexual neighbors." The state’s sole justification for the law, "perceived public moral disapproval of homosexuality," is in Sommer’s opinion, "just another way of saying that because the public disapproves of gay people, it can subject them to a special rule that applies criminal sanction to their conduct but not to others."

In court Sommer argued that the state has no compelling reason to dictate "what consenting adults are doing behind their own bedroom doors" and that, "The police simply do not belong in consenting adults’ bedrooms."

Arkansas Assistant Attorney General Timothy Gauger wrote in his motion that, "Plaintiffs, and undoubtedly others, passionately believe that the act represents ‘backward thinking,’ ‘intolerance’ and bad public policy, but plaintiffs have presented their complaint in the wrong forum [the courts]. ... 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." He said there is no right to privacy in the Arkansas or U.S. constitutions (although there has been some recognition of an implied right to privacy in the latter).

In court Gauger argued not only that the state has a right to enact laws based on the "moral disapproval" of a majority of its citizens, but that, "You could say the whole of criminal law is based on morality."

Where’s the Harm?

Judge Bogard agreed that laws can be enacted based on morality but added, "You say, ‘Well, we think it’s immoral, so we’re not going to let you do it.’ The problem is: In most other laws that are based on morality you can see some discernable harm. I really have trouble finding some reasonable harm here." Bogard questioned both attorneys extensively in the course of the ninety-minute hearing.

Sodomy laws applying solely to gays and lesbians remain only in Kansas, Oklahoma, and Texas, although courts have ruled against the Texas law.

Local attorneys cooperating with Lambda in the legal challenge are David Ivers and Emily Sneddon of Little Rock’s Mitchell, Blackstock & Barnes.

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