Jegley v. Picado

Robert L. Brown, Justice, concurring. I concur with the majority opinion but would only strike down the sodomy statute primarily because it applies to the noncommercial sexual conduct of consenting gay or lesbian adult couples in their homes. The State would have it that government agencies should be permitted to intrude into the bedrooms of the homes of consenting gay and lesbian adults to police whether they are engaged in noncommercial sex. 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; of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

Ark. Const. Art. 2, § 2.

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.”). That principle continues undiluted and undiminished even to the present day. See, e.g., Griffin v. State, 347 Ark. 788 , 67 S.W.3d 582 (2002). If such is true of the home, how much more so of the bedroom?

The majority opinion speaks eloquently on why these plaintiffs have standing to bring this action and why this matter is justiciable. I agree completely that the State has placed the plaintiffs in a catch-22 situation. According to the State, they are dubbed criminals but have no recourse in the courts to correct this status. The State’s counsel at oral argument contended that the sodomy statute is a “dead letter” and that no prosecutor currently enforces it. Nor has it been enforced for decades, counsel adds. In the same breath, she urges that the statute must be kept on the books and that the plaintiffs should be prevented from challenging it, even while the statute makes them criminals. It is indisputable that the sodomy statute hangs like a sword of Damocles over the heads of the plaintiffs, ready to fall at any moment.

The idea of keeping a criminal statute on the books which no one wants to enforce is perverse in itself. This brands the plaintiffs with a scarlet letter that the State contends they should have no chance to contest in the courts of this State. The State’s position comes perilously close to complete inconsistency and smacks of a no-lose proposition for the government and a no-win situation for the plaintiffs. Other sister states have refused to countenance this argument and have permitted attacks on their sodomy statutes by plaintiffs who admit to the conduct but who have not been arrested. See, e.g., Gryczan v. State, 283 Mont. 433 , 942 P.2d 112 (1997); Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996).

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. 327 , 510 S.E.2d 18 (1998), rever’g Christensen v. State, 266 Ga. 474 , 468 S.E.2d 188 (1996). The Georgia reversal is symptomatic of the national sea change in attitude towards statutes such as these. The trend, even in Arkansas, has been for the legislature to chip away at the sodomy statute. In 1975, the General Assembly repealed the sodomy statute applicable to homosexuals and heterosexuals, which made the crime a felony punishable by up to twenty-one years in prison. See Act 928 of 1975. In 1977, the statute found its way back into the Criminal Code but this time as a misdemeanor punishable by up to a year in jail and applicable only to sexual conduct by those of the same sex. Act 828 of 1977, now codified at Ark. Code Ann. § 5-14-122 (Repl. 1997).

This court has upheld enforcement of the predecessor sodomy statute against prohibited acts committed in a parked automobile by two men. See Carter v. State, 255 Ark. 225 , 500 S.W.2d 368 (1973), cert. denied, 416 U.S. 905 (1974); Connor v. State, 253 Ark. 854 , 490 S.W.2d 114 (1973). In both instances, this court made the point that the acts prosecuted did not fall within a zone of privacy but were public acts, leaving open the question of liability for intimate sexual acts in the privacy of one’s home. The issue now before this court is whether to permit enforcement of the statute for conduct that by everyone’s admission takes place in private, that is, in the sanctuary of the bedroom. That is an altogether different scenario from what took place in Carter and. Connor. We, of course, have statutes in the Criminal Code prohibiting public indecency such as occurred in the Carter and Connor cases. See Ark. Code Ann. § 5-14-111 (Repl. 1997).

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. I further agree that enforcement of the act against one group of citizens violates the equal protection clause of the Arkansas Constitution (Article 2, section 3) and that the State has no valid reason for doing so. The State posits that it is enforcing Arkansas morals as part of its police power. But pronouncing moral judgments for bedroom behavior that criminalizes the conduct of this class of citizens exceeds the bounds of legislative authority and amounts to little more than a government morality fixed by a majority of the General Assembly. That flies in the face of the basic constitutional rights of independence, freedom, happiness, and security. Other states have noted how far afield the General Assembly roams when it intrudes into bedrooms of this class of consenting adults. See, e.g., Powell v. State, supra; Gryczan v. State, supra; Campbell v. Sundquist, supra; Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1993). I agree, and would only add that the bedroom for these adults is one area where people need a good “leaving alone” by their government and police agencies.

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. I concur in this trend, and for that reason, I join the majority opinion to the extent it holds that the sodomy statute is unconstitutional as applied to consenting adult couples engaged in noncommercial sexual conduct in the privacy of their homes.

With respect to public sexual conduct prohibited under the sodomy statute, the General Assembly has a legitimate interest in criminalizing public acts of sexual indecency and has done so for all persons under the Public Sexual Indecency Act, codified at Ark. Code Ann. § 5-14-111 (Repl. 1997). In short, under § 5-14-111, there is not different treatment of homosexuals and heterosexuals. Because the legitimate government interest is satisfied by § 5-14-111, there is no reason to retain § 5-14-122 on the books. For that reason, I concur with the majority opinion.

Hannah, ]., joins.