Last edited: January 03, 2005

Attorneys Ask Judge to End Suit

Arkansas Democrat-Gazette, January 30, 2001
Box 2221, Little Rock, AR 72203
Fax: 501-372-3908

By Traci Shurley

An attorney representing seven Arkansans told a judge Monday that the state has no compelling reason to dictate "what consenting adults are doing behind their own bedroom doors" — making a state law prohibiting same-sex sodomy unconstitutional.

Susan Sommer, supervising attorney with New York City-based Lambda Legal Defense and Education Fund, and Arkansas Assistant Attorney General Timothy Gauger squared off before Pulaski County Circuit Judge David Bogard as both sides asked Bogard to make a final ruling in a legal challenge that began more than two years ago.

The plaintiffs filed the case against the state attorney general’s office and prosecutors statewide because they say the law, enacted in 1977, violates homosexuals’ right to privacy and equal protection under the law.

However, attorneys for the state have argued there is no right to individual privacy contained in the Arkansas or U.S. constitutions that would stop a state from criminalizing homosexual sodomy.

On Monday, Gauger said the state has the right to enact laws based on the majority of its citizens’ "moral disapproval."

Bogard said he will decide the case within the next few weeks.

"I’ll be honest with you, I’m not sure what I’m going to do with this," Bogard told attorneys after a hearing on their respective motions for summary judgments. "I’ll give both sides some very serious thought and let you know in a couple weeks."

Arkansas Code 5-14-122 makes sodomy between people of the same sex a Class A misdemeanor, punishable by up to a year in jail and a fine of up to $1,000. Neither party in the lawsuit has presented evidence of anyone ever having been charged with the crime in Arkansas.

At Monday’s hearing, Sommer said the law unfairly targets homosexual Arkansans for conduct that is legal for heterosexuals.

"These are fine, contributing members of their communities," Sommer said, flanked by six of the seven plaintiffs after the hearing. "They’re your co-workers, your neighbors and your brothers and sisters, and they are treated unfairly in this state."

In the state’s motion for summary judgment, Gauger wrote: "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 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."

And, during Monday’s hearing, Gauger told Bogard that a state has the right to enact laws based on the morals expressed by its citizens.

Bogard, who questioned both sides throughout their arguments, told Gauger that while the state does have the right to enact legislation based on morality, he was hard-pressed to find another law similar to the same-sex sodomy statute.

"The problem is: In most other laws that are based on morality you can see some discernible harm," Bogard said.

Even if Bogard were to grant the plaintiffs’ motion for summary judgment and declare 5-14-122 unconstitutional, a circuit court doesn’t have the authority to issue an injunction keeping the law from being enforced, Gauger said.

The seven plaintiffs first filed suit in Pulaski County Chancery Court.

In June 1999, as part of a decision 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 the defendants that the lawsuit didn’t present a controversy worthy of the court’s attention because none of the plaintiffs had 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.

The plaintiffs, who spoke to reporters after the hearing, said that even though the law is not enforced, it remains a threat.

Robin White, a 44-year-old research analyst who lives in Little Rock, said that the law is often used against homosexuals involved in custody disputes and other family court matters.

"As a tax-paying, contributing citizen, I do not deserve to be called a criminal by my state just because of who I am," said White.

According to the Web site for the American Civil Liberties Union, Arkansas is one of only five states with sodomy laws targeting same-sex acts. The others are Missouri, Kansas, Oklahoma and Texas. Court decisions in Missouri and Texas have ruled against sodomy laws in those states.

[Home] [News] [Arkansas]