Last edited: February 14, 2005

Arkansas High Court Strikes Sodomy Law / Network, July 8, 2002

By Ann Rostow

SUMMARY: The Arkansas Supreme Court struck down the state’s exclusively same-sex sodomy law, leaving only three states that continue to single out gay sex for criminal penalties.

On Friday, the Arkansas Supreme Court struck down the state’s exclusively homosexual sodomy law, leaving Texas, Oklahoma and Kansas as the only states in the country that continue to single out gay sex for criminal penalties. [sic. Missouri also continues to criminalize gay sex.]

According to Lambda Legal Defense and Education Fund, 10 other states have sodomy laws on the books that apply to all couples, straight and gay.

The Arkansas statute was challenged in January 1998 by seven gay and lesbian residents, represented by Lambda. Although no one in the group had been charged under the sodomy law, they successfully argued that the possibility of prosecution gave them standing to sue. In March of 2001, a trial court granted summary judgment in their favor, calling the law a violation of the rights to privacy and equal protection granted by the state Constitution.

In its final appeal to the state Supreme Court, the state of Arkansas insisted that sodomy laws are justified by the state’s interest in promoting public morality, and revived the notion that the plaintiffs lacked standing to sue. The state claimed that there was no fundamental right to have private gay sex, and dismissed the equal protection arguments by noting that the sodomy law discriminated on the basis of sexual orientation, not gender. Gender is protected against discrimination under state law, while sexual orientation is not.

But, with the exception of two dissenters, the justices were not impressed. "We hold," wrote the majority in its discussion of privacy, "that the fundamental right to privacy implicit in our law protects all private, consensual, noncommercial acts of sexual intimacy between adults. Because (the sodomy statute) burdens certain sexual conduct between members of the same sex, we find that it infringes upon the fundamental right to privacy guaranteed to the citizens of Arkansas."

In terms of equal protection, the majority noted that the statute "arbitrarily condemns conduct between same-sex actors while permitting the same conduct among opposite-sex actors." Absent a good reason for the discrepancy, the court continued, "we must now hold that (the sodomy statute) is unconstitutional as violative of Arkansas’ Equal Rights Amendment."

The decision, handed down just eight days after oral arguments, might affect Texas’ same-sex-only sodomy law, which is also under legal challenge. Lambda is expected to appeal the Texas case to the U.S. Supreme Court by mid-July.

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