Court Strikes Down Same-Sex Law
Associated Press, July 5, 2002
By Caryn Rousseau
LITTLE ROCK, Ark.—The state Supreme Court ruled
Friday that a law barring sexual relations between people of the same gender
was an unconstitutional invasion of privacy.
The Legislature passed the law in 1977, and it apparently has never been
used to prosecute anyone.
The seven plaintiffs challenged the law, though, because they don’t want
their conduct to be considered illegal, according to the Lambda Legal Defense
and Education Fund, which represented them.
"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.
"A fundamental right to privacy is implicit in the Arkansas
constitution" and the state has a tradition of protecting that right, the
court wrote.
A judge had ruled in 2001 that the law was unconstitutional, but the state
appealed. The attorney general’s office argued the Legislature should be
allowed to consider moral judgments when creating laws.
A dissenting opinion by two justices said the court should not act because
there was no criminal case brought under the law. The plaintiffs failed to
show an actual threat of persecution or harm from the law’s existence, the
dissent said.
The law carried a penalty of a $1,000 fine and up to a year in jail.
Arkansas was one of six states that criminalized gay and lesbian sexual
conduct involving consenting adults. The others are Kansas, Louisiana,
Oklahoma, Texas and Utah. [sic. Utah criminalizes heterosexuals as well.]
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