Attorneys Ask Judge to End Suit
Arkansas
Democrat-Gazette, January 30, 2001
Box 2221, Little Rock, AR 72203
Fax: 501-372-3908
Email: AROnline@ardemgaz.com
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.
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