barrykind
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Arkansas Court Strikes Down State's Anti-Sodomy Law
Friday, July 05, 2002
LITTLE ROCK — A state law barring sexual relations between people of the same sex is an unconstitutional invasion of privacy, the Arkansas Supreme Court ruled Friday.
The decision upheld a ruling by Pulaski County Circuit Judge David Bogard. He had ruled on March 23, 2001, that the state Legislature violated the state's constitution when it barred consensual, noncommercial sex acts involving people of the same sex. The state appealed Bogard's decision to the Supreme Court.
"We agree that the police power may not be used to enforce a majority morality on persons whose conduct does not harm others," the court said in the ruling written by Associate Justice Annabelle Clinton Imber. "The Arkansas Equal Rights Amendment serves to protect minorities at the hands of majorities."
The plaintiffs include seven Arkansans who say they are homosexual. Among them is Randy McCain of Sherwood, who called the ruling a victory.
"It is satisfying that we are no longer considered criminals," McCain said Friday. "I'm sure all of us would rather have not brought a part of our intimate lives to the public, but we felt we had to because of fear of this law being enforced."
The ruling went on to say 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."
In oral arguments before the high court last week, a lawyer with the state attorney general's office contended that the Legislature should be allowed to consider moral judgments when creating laws such as the anti-sodomy law.
Attorney general spokesman Jim Pitcock said Friday that the court's ruling provided clarity.
"Now it's the law," Pitcock said on Friday. "The issue is settled. Mark Pryor as attorney general has a sworn duty to defend Arkansas law, particularly where there is a credible argument to be made."
Justice Robert L. Brown wrote a concurring opinion, in which Justice Jim Hannah joined, agreeing that the sodomy statute should be struck down as it applies to noncommercial sexual conduct. But the dissent said public sexual conduct was another matter.
"The General Assembly has a legitimate interest in criminalizing public acts of sexual indecency," Brown wrote in the concurring opinion.
Brown argued that the statute, "amounts to little more than a government morality fixed by a majority of the General Assembly."
"The bedroom for these adults is one area where people need a good 'leaving alone' by their government and police agencies," he wrote. The idea of keeping a criminal statute on the books that no one wanted to enforce is perverse, he said.
In a dissent, justices Ray Thornton and Chief Justice W. H. "Dub" Arnold argued that there was no case for the court to rule on.
Thornton said that the seven people who brought the case "have failed to establish that there is an actual threat of prosecution or that they have suffered actual harm resulting from the existence of the statute."
Thornton wrote that, with its ruling, the court was acting as a super legislative body.
On Oct. 29, the New York-based Lambda Legal Defense and Education Fund, representing the seven plaintiffs, filed a brief with the state's high court arguing that the law "singles out gay men and lesbians for criminal condemnation for engaging in the very same conduct freely permitted between heterosexuals."
The plaintiffs claimed that they feared being charged and convicted or losing their jobs or professional licenses. The law they challenged carried a penalty of a $1,000 fine and up to a year in jail.
Attempts to reach the Lambda Legal Defense and Education Fund and the seven plaintiffs for comment were unsuccessful Friday. There was no immediate response to messages left on answering machines.
Arkansas was one of six remaining states that criminalized gay and lesbian sexual conduct involving consenting adults. The others are Kansas, Louisiana, Oklahoma, Texas and Utah.
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The HEART of the issue is truly the issue of the HEART!
John 3:3;Mark 8:34-38;James 1:27
Posts: 3529 | From: Orange, Texas | Registered: Jun 2002
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