Last edited: January 01, 2005

‘77 Arkansas Sodomy Law Struck Down

State Supreme Court hands Lambda Legal total victory

Gay City News, July 12-18, 2002
New York, NY

By Arthur S. Leonard

In a belated Independence Day present to lesbian and gay residents of Arkansas, that state’s Supreme Court, by a 5 to 2 vote, issued a ruling on July 5 holding unconstitutional the state law criminalizing oral and anal sex between persons of the same sex. The court’s decision invalidated the law based on two provisions of the state constitution, one protecting individual privacy and the other guaranteeing equal protection of the laws.

The ruling came in a lawsuit filed in 1998 by Lambda Legal Defense and Education Fund on behalf of seven gay residents of the state, none of whom had been prosecuted under the sodomy law but each of whom declared publicly that they have engaged in illegal sexual activity in private with consenting adult partners and would continue to do so. On that basis, they claimed that they were in danger of prosecution under an invalid criminal statute, and subject to stigmatization and discrimination as a result.

The first big hurdle in bringing such a case is to get the court to consider it on the merits, and several years of the lawsuit were consumed by argument over whether the plaintiffs had "standing" to seek a declaration that the law was unconstitutional. The state argued that there was no record of anybody being prosecuted under the statute for consensual sex in private since its enactment in 1977, when it replaced a prior sodomy law that applied to heterosexuals and homosexuals alike and had much more severe penalties. Consequently, the plaintiffs had no reasonable basis for fearing prosecution, according to the state.

In rejecting that argument in her opinion for the state’s high court, Justice Annabelle Clinton Imber accepted the plaintiffs’ argument that as long as the law remained on the books they were stigmatized as criminals and could suffer a variety of consequences, including discrimination by the state in areas such as employment and parental rights.

"In the past decade, three different attempts to repeal the statute have failed, sending a signal to prosecutors of the statute’s continuing vitality," Imber wrote. "The State has refused to disavow enforcement of the statute and is, in fact, vigorously defending the legality of the statute in the present action. In addition, albeit for public or nonconsensual conduct, there have been prosecutions under Arkansas’s sodomy statute as recently as 1988. In addition, our sodomy statute has been used outside the criminal context in ways harmful to those who engage in same-sex conduct prohibited by the statute. Clearly this statute is not moribund, and the State has not foresworn enforcement of it."

In a concurring opinion, Justice Robert L. Brown drove home this point even more strongly, writing, "I agree completely that the State has placed the plaintiffs in a catch-22 situation. According to the State, they are dubbed criminals but have no recourse in the courts to correct this status. The State’s counsel at oral argument contended that the sodomy statute is a ‘dead letter’ and that no prosecutor currently enforces it. Nor has it been enforced for decades, counsel adds. In the same breath, she urges that the statute must be kept on the books and that the plaintiffs should be prevented from challenging it, even while the statute makes them criminals. It is indisputable that the sodomy statute hangs like a sword of Damocles over the heads of the plaintiffs, ready to fall at any moment. The idea of keeping a criminal statute on the books which no one wants to enforce is perverse in itself. This brands the plaintiffs with a scarlet letter that the State contends they should have no chance to contest in the courts of this State. The State’s position comes perilously close to complete inconsistency and smacks of a no-lose proposition for the government and a no-win situation for the plaintiffs. Other sister states have refused to countenance this argument and have permitted attacks on their sodomy statutes by plaintiffs who admit to the conduct but who have not been arrested."

Brown’s reference to "other sister states" was quite significant, since when it came to evaluating the constitutionality of the sodomy law on the merits, the court repeatedly referred to and quoted from recent decisions by appellate courts in Montana, Kentucky, Tennessee, and Georgia, all invalidating sodomy laws by reference to state constitutional privacy arguments, and in some cases equal protection arguments as well. Brown, more than Imber, noted a developing trend in state courts to find criminal treatment of private sexual expression invalid, commenting, "The Georgia reversal is symptomatic of the national sea change in attitude towards statutes such as these."

Imber strongly asserted the unconstitutionality of the statute, broadly proclaiming the right of Arkansas citizens to protection from government interference with their privacy.

"In considering our constitution together with... statutes, rules, and case law... it is clear to this court that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution." Imber wrote. "...[We] hold that the fundamental right to privacy implicit in our law protects all private, consensual, noncommercial acts of sexual intimacy between adults. Because [the sodomy law] 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."

Since the right to privacy was found to be "fundamental," any statute that "burdens" it is subject to "strict scrutiny," under which it could only be upheld if the government had a compelling justification for it. Here, the court found that the state actually had provided no justification for the invasion of privacy at all.

"According to the circuit court’s order in this case, appellant concedes that the State can offer no compelling state interest sufficient to justify the sodomy statute," Imber continued. "Therefore, Arkansas’s sodomy statute... is unconstitutional as applied to private, consensual, noncommercial, same-sex sodomy.

The court could have stopped at this point, but instead discussed the alternative ground for attacking the statute: equal protection. The challengers argued that by making it criminal for gay people to engage in conduct that was freely allowed to heterosexuals, the state had discriminated on the basis of sex and sexual orientation. If this were found to be sex discrimination, under Arkansas precedents the state would be held to a heightened level of judicial review in defending the law. The standard of review for sexual orientation discrimination has yet to be established by Arkansas’s highest court.

The court found that there was a valid claim of sex discrimination, but proceeded to analyze the case assuming that the least demanding standard of judicial review would be placed on the state. Even so, the court found the law wanting even under that most permissive standard.

"[The State] contends that the prohibitions of the statute are justified by the State’s legitimate interest in protecting public morality," Imber wrote. "Appellees counter that long-standing, negative views about a group of people do not amount to proper justification for differential treatment... We agree that the police power may not be used to enforce a majority morality on persons whose conduct does not harm others. The Arkansas Equal Rights Amendment serves to protect minorities at the hands of majorities... [The] State has a clear and proper role to protect the public from offensive displays of sexual behavior, to protect people from forcible sexual contact, and to protect minors from sexual abuse by adults. However, criminal statutes, including those proscribing indecent exposure, rape, statutory rape, and the like, are in existence to protect the public from precisely such harms."

Imber continued that the state "has not offered sufficient reasoning to show that notions of a public morality justify the prohibition of consensual, private intimate behavior between persons of the same sex in the name of the public interest. There is no contention that same-sex sodomy implicates the public health or welfare, the efficient administration of government, the economy, the citizenry, or the promotion of the family unit. We have consistently held that legislation must bear a real or substantial relationship to the protection of public health, safety and welfare, in order that personal rights and property rights not be subjected to arbitrary or oppressive, rather than reasonable, invasion."

Thus, the statute was unconstitutional on equal protection grounds.

Brown’s concurrence focused on emphasizing the spatial privacy aspect of the case—that the plaintiffs were arguing for the right to engage in sexual activity with their chosen partners in private. He pointed out that a prior opinion of the court upholding the constitutionality of the previous sodomy law concerned a prosecution for engaging in sexual activity in a parked car, which he characterized as "public activity." There was a dissenting opinion by two members of the court, but it was entirely concerned with the issue of the plaintiffs’ standing to bring the case. These justices argued that as nobody had been prosecuted recently under the law for consensual private activity, there was no real threat of prosecution against the plaintiffs.

One difference between the opinion for the court and the concurrence by Brown had to do with the final outcome of the case. For a majority of the court, the correct result was to declare that the sodomy law was unconstitutional as applied to adult, consensual private sex. Brown pointed out that there are other statutes to take care of non-consensual or public sex cases, and therefore there is no need to keep the statute on the books at all.

Either way, with Arkansas’s criminal sodomy law essentially rendered invalid, there remain only three states with statutes specifically targeting gay people for criminal prosecution. In one of those, Texas, a cowardly state supreme court has refused to step in and reverse a retrograde court of appeals ruling that upheld the same-sex sodomy law on morality grounds. Perhaps this decision from neighboring Arkansas will help the Texas legislature see the wisdom of repealing the sodomy law, as the Arizona legislature recently did in response to privacy arguments.

[Home] [News] [Arkansas]