Last edited: February 14, 2005

State, Gays Argue Over Sodomy Law

Southwest Times Record, June 28, 2002
Box 1359, Fort Smith, AR 72902
Fax: 501-784-0413

By Rob Moritz, Times Record,

LITTLE ROCK—The state law against sodomy violates rights to privacy and equal protection guaranteed by the state constitution, the state Supreme Court was told Thursday.

Susan Sommer, attorney for the Lambda Legal Defense and Education Fund of New York City, said the 1977 statute is illegal because it targets gay men and lesbians.

Assistant Attorney General Jill Moore argued the law is not biased against homosexuals and that the constitution does not guarantee a fundamental right of privacy that includes engaging in homosexual sodomy. She also contended that the law could only be challenged in defense of a prosecution.

The arguments came in the state’s appeal of an April 2001 ruling by Pulaski County Circuit Judge David Bogard that the law banning sodomy between people of the same sex is unconstitutional. Bogard said the Legislature erred when it barred consensual, noncommercial sexual activities among people of the same gender.

Sodomy of any kind was illegal in the state until the Legislature in 1977 changed the law to outlaw the practice only among people of the same sex.

Seven Arkansans who say they are homosexual filed the lawsuit to argue that the law put them in fear of being charged or convicted or losing their jobs or professional licenses. Moore said that because the law has never been enforced, the seven people could not argue that there is a threat of their being arrested. The Arkansas law, a Class A misdemeanor, carries a penalty of up to $1,000 fine and up to a year in jail.

Sommer said the state’s argument that no one had ever been prosecuted under the law was no assurance that no one would be in the future.

During the oral arguments, Moore described the law as "a dead letter," when noting that it had never been enforced. Associate Justice Robert Brown asked why it is still on the books, and Associate Justice Annabelle Clinton Imber asked why it wasn’t being enforced. Moore said it is up to the Legislature to remove the law and that prosecutors are too busy to seek out violators of the law and prosecute them.

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