Arkansas Supreme Court; Annabelle Clinton Imber; Robert L. Brown; Ray Thornton

“ I agree with the majority that the right to privacy is a fundamental right under the Arkansas Constitution and that it is violated by enforcement of the sodomy statute against consenting adults engaged in noncommercial sexual activity in the bedroom of their homes. ”

“ One need not endorse wholesale repeal of all "victimless" crimes in order to recognize that legislating penal sanctions solely to maintain widely held concepts of morality and aesthetics is a costly enterprise. It sacrifices personal liberty, not because the actor's conduct results in harm to another citizen but only because it is inconsistent with the majoritarian notion of acceptable behavior. ”

“ When a plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." ”

“ Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not ”

“ We have recognized protection of individual rights greater than the federal floor in a number of cases. In the criminal context, we have said: "The privacy of the citizens in their homes, secure from nighttime intrusions, is a right of vast importance as attested not only by our Rules but also by our state and federal constitutions." ”

“ In conclusion, appellant 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. ”

“ The rights granted by our constitution are guaranteed to all citizens equally. Article 2, Section 3, provides: "The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity, nor exempted from any burden or duty, on account of race, color or previous condition." Ark. Const. art. 2, § 3. "The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens." ”

“ Many states [4] have identified a right to privacy implicit in their own constitutions that is more protective than the federal right. For example, the Supreme Court of Georgia, which recognizes a "liberty of privacy" guaranteed by a state constitutional provision declaring that no person shall be deprived of liberty except by due process of law, recently held that a sex-neutral statute criminalizing intimate consensual sexual acts performed by adults in private impermissibly infringed upon the right to privacy. ”

“ It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights. ”

“ This is so even while the bedrooms of married and unmarried heterosexual couples would not be subjected to such government interference and scrutiny, because they are not covered by the Arkansas sodomy statute. The State's position is totally at odds with the bedrock principles of independence, freedom, happiness, and security which form the core of our individual rights under the Arkansas Constitution:
All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty ”

“ I believe we should respect that separation of powers, and declare a legislative act unconstitutional only when, in justice Frankfurter's words, the exercise of such powers "is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals." ”

“ This court held that there was no justiciable case or controversy absent any allegation that attempts had been made to obtain voters' signatures as required by the recall statute or any specific allegation that the petitioner wished to recall a city director. We said:
The Declaratory Judgment Statute is applicable only where there is a present actual controversy, and all interested persons are made parties, and only where justiciable issues are presented. It does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent or uncertain. ”

“ Our statute on the right to a declaratory judgment states:Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. ”

“ The approach of a citizen pursuant to a policeman's investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government's interest for the intrusion against the individual's right to privacy and personal freedom ”

“ According to the argument advanced by appellant, the State of Arkansas has a legitimate interest in criminalizing homosexual sodomy through its broad police power. He contends that the prohibitions of the statute are justified by the State's legitimate interest in protecting public morality. Appellees counter that long-standing, negative views about a group of people do not amount to proper justification for differential treatment. ”

“ On appeal, appellant claims the circuit court erred in holding that appellees claims establish a justiciable controversy and that, even if a justiciable controversy exists, appellees cannot overcome the presumption of the statute's constitutionality. Appellant further contends the circuit court erred in finding that the Arkansas Constitution guarantees a fundamental right to privacy encompassing homosexual sodomy; the circuit court erred in finding that the sodomy statute reflects impermissible gender-based discrimination ”

“ Societal mores change. Thirty years ago I daresay most religious denominations would have supported the existence of the sodomy statute or something akin to it. Today, five religious denominations have filed an amicus brief in this case challenging the statute's constitutionality. The unmistakable trend, both nationally and in Arkansas, is to curb government intrusions at the threshold of one's door and most definitely at the threshold of one's bedroom. ”

“ If anything has been sacrosanct over the past hundred and fifty years under the common law of Arkansas, it is the principle that a person's home is his castle. See, e.g., McGuire v. Cook, 13 Ark. 448, 458 (1853) (" [T] he house of every man is to him as his castle and fortress, as well for his defense against injury and violence as for repose.") ”

“ An act should be struck down only when there is a clear incompatibility between the act and the constitution. Id. We acknowledge that it is the duty of the courts to sustain a statute unless it appears to be clearly outside the scope of reasonable and legitimate regulation. City of Little Rock v. Smith, 204 Ark. 692, 163 S.W.2d 705 (1942) .
[16, 17] As an initial matter, appellant contends that a facial challenge cannot be maintained because a plaintiff may only challenge a law as facially invalid if he shows that application of the law will restrict his First Amendment rights. We disagree. ”

“ In Picado I, this court alluded to the justiciable-controversy requirement:As a general rule, equity jurisdiction exists only when the remedy at law is inadequate. More particularly, "equity will not entertain a contest over the validity of a statute nor restrain prosecutions pending the determination of the validity thereof where an adequate remedy at law exists." Here, Appellants argue that Appellees' remedy at law is to challenge the constitutionality of section 5-14-122 in defense of a prosecution under that statute. ”

“ It is not our role to discover the actual basis for the legislation. Arkansas Hosp. Ass'n, supra; Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983) . We merely consider whether there is any rational basis which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of arbitrary and capricious government purposes. If we determine that any rational basis exists, the statute will withstand constitutional challenge. See Arkansas Hosp. ”

“ The respondent then brought suit in the federal court challenging the constitutionality of the statute insofar as it criminalized sodomy performed in private and between consenting adults. Id. See Ga. Code Ann. § 16-6-2 (a) (1984) (" [a] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another") . The sex or status of the persons who engage in the sexual act is irrelevant under the Georgia statute. ”

“ In the affidavits which were filed in support of their motion for summary judgment, appellees alleged: (1) that they are harmed because the statute condemns homosexual sex without condemning heterosexual sex; (2) that they suffer a stigmatic harm because they know that by violating the statute they are engaging in criminal behavior; (3) that they suffer a heightened risk of additional discrimination if the statute is not declared unconstitutional because the statute is used as justification for other forms of discrimination ”

“ Arkansas is reportedly one of four remaining states that criminalizes gay and lesbian sexual conduct between consenting adult couples in the bedroom of a home. The other three are Texas, Kansas, and Oklahoma. Georgia recently reversed itself two years after upholding its sodomy statute and struck it down as a violation of the right to privacy, as incorporated in the due process clause of the Georgia Constitution. Powell v. State, 270 Ga. ”

“ The Nevada Court determined that a group of homosexuals had failed to establish standing to challenge a statute prohibiting sodomy. In Doe, four adult homosexuals brought a declaratory judgment action seeking to challenge Nevada's "infamous sexual offenses" statute. Id. The appellants had not been arrested or prosecuted under the statute. The appellee argued that because the appellants had not been arrested or prosecuted for violation of the statute, they lacked standing to challenge the statute. ”

“ Appellees are long-time gay and lesbian residents of Arkansas, several of whom live with partners in long-term, committed relationships. They include a teacher, a minister, a nurse, a school guidance counselor, a small-business owner, and computer-industry employees. One is the mother of two children. All admit that they have violated the statute in the past and allege that they intend to engage in conduct prohibited by the statute in the future. ”

“ The Court held that the plaintiffs were not without some reason in fearing prosecution given that the statute could apply to conduct in which they intended to engage and the fact that the state had not disavowed any intention of invoking the provision. Id. The Court stated:
A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. But " [o] ne does not have to await the consummation of threatened injury to obtain preventative relief. If the injury is certainly impending, that is enough. ”

“ The statute at issue in this case restrains the liberty of those who wish to engage in private, consensual acts of same-sex sodomy. There is no prohibition against members of opposite sexes engaging in the same conduct. ”

“ When a statute infringes upon a fundamental right, it cannot survive unless "a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out [the] state interest." Thompson v. Arkansas Social Services, 282 Ark. 369, 374, 669 S.W.2d 878, 880 (1984) . 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. Therefore, Arkansas's sodomy statute at Ark. ”

“ The Court also indicated that eighty years of nonenforcement under a state statute deprived it of the immediacy necessary to invoke the Court's power of constitutional adjudication. Babbitt appears to show a relaxing of the standard set forth in Poe by finding questions of a statute's constitutionality to be justiciable while conceding that the statute had not been and might never be enforced. ”

“ For classifications based upon gender, an intermediate level of scrutiny is in order. Wengler v. Druggist Mutual Ins. Co., 446 U.S. 142 (1980) ; Orr v. Orr, 440 U.S. 268 (1979) . To withstand an intermediate level of scrutiny, classifications by gender must serve important governmental objectives and be substantially related to achievement of those objectives. Conser v. Biddy, 274 Ark. 367, 625 S.W.2d 457 (1981) ; Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979) . Appellant in this case attempts to justify the statute at issue only in accordance with a rational-basis standard of review. ”