Arkansas Official Argues for Sodomy Law
The Advocate,
November 14, 2001
A judge’s ruling that Arkansas’s sodomy law, which bans sex between
partners of the same sex, is unconstitutional is not supported by any case
law, the state attorney general’s office said Tuesday. Attorney General Mark
Pryor’s office filed a brief with the state supreme court supporting its
appeal of a March 23 ruling by Pulaski County circuit judge David Bogard. The
brief filed by Assistant Attorney General Jill Jones Moore argues that neither
case law nor history supports Bogard’s finding that the 1977 law violates
privacy rights granted by the state constitution. In addition, the brief said,
the law has apparently never been enforced, so the plaintiffs—seven gay
Arkansans—can’t claim there’s a threat worthy of a court’s attention.
"To argue that [plaintiffs] may in the future become a target of the act,
given its history of nonenforcement, is speculative at best," the brief
said. On October 29, the New York-based Lambda Legal Defense and Education
Fund, representing the plaintiffs, filed a brief with the state’s high court
arguing that the 1977 law "singles out gay men and lesbians for criminal
condemnation for engaging in the very same conduct freely permitted
heterosexuals." The seven plaintiffs told Bogard they feared being
charged or convicted or losing their jobs or professional licenses. The law
they challenged carries a penalty of a $1,000 fine and up to a year in jail.
Susan Sommer, supervising attorney for Lambda Legal, said Tuesday that the
state’s argument that no one has ever been prosecuted under the law is no
assurance that no one will be in the future. Prosecutors have had ample
opportunity to say they would not enforce the law, she said, but none has done
so. "They’re not saying, ‘We’re not going to do it,"‘ Sommer
said. "They’re saying, ‘We have discretion to do it or not,’ and
that’s really a cold comfort."
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