Larry JEGLEY, In His Official Capacity, and On Behalf of Himself and All Others Similarly Situated v. Elena PICADO, et al.
01-815
Supreme Court of Arkansas
Opinion delivered July 5, 2002
80 S.W.3d 332
Mitchell, Blackstock, Barnes, Wagoner & Ivers, by: David L. Ivers and Emily Sneddon; and Lambda Legal Defense & Education Fund, Inc., by: Susan L. Sommer, Ruth E. Harlow, and Jennifer Middleton, for appellees.
Kaplan, Brewer & Maxey, P.A., by: Philip E. Kaplan; and Professor John M.A. DiPippa (Associate‘s License, Commonwealth of Virginia), for amici curiae National Conference for Community Justice, the Right Reverend Larry E. Maze, Rabbi Eugene Levy, the Reverend Jo Ellen Willis, the Reverend Donna Rountree, More Light Presbyterians of Central Arkansas, and University of Arkansas Law Professors Donald Judges, Cynthia E. Nance, Richard B. Atkinson, and Morton Gitelman.
Nathalie F.P. Gilfoyle and James L. McHugh, for amicus curiae American Psychological Association.
Carolyn I. Polowy, for amicus curiae National Association of Social Workers, Inc.
Ronald L. May and Jenner & Block, LLC, by: William M. Hohengarten and Nicole G. Berner, for amici curiae American Psy
ANNABELLE CLINTON IMBER, Justice. This appeal involves a constitutional challenge to the Arkansas sodomy statute at
The statute at issue specifically provides:
(a) A person commits sodomy if such person performs any act of sexual gratification involving:
(1) The penetration, however slight, of the anus or mouth of an animal or a person by the penis of a person of the same sex or an animal; or
(2) The penetration, however slight, of the vagina or anus of an animal or a person by any body member of a person of the same sex or an animal.
(b) Sodomy is a Class A misdemeanor.
Appellees Elena Picado, Randy McCain, Robin White, Bryan Manire, Vernon Stokay, Charlotte Downey and George Townsand filed a declaratory judgment action seeking to have
Appellant maintains that the sodomy statute is constitutional. He filed a motion to dismiss appellees’ complaint, but the chancellor entered an order denying that motion. An interlocutory appeal to this court followed. By opinion entered June 24, 1999, we reversed and remanded the case with directions that the case be transferred to circuit court. See Bryant v. Picado, 338 Ark. 227, 996 S.W.2d 17 (1999) (Picado I). The original defendants were prosecutor Larry Jegley and then-Attorney General Winston Bryant, sued in their “official” capacities only. Mark Pryor was later substituted in place of Bryant when he assumed the office of Attorney General. The circuit court later granted Pryor‘s motion to dismiss, finding that Pryor did not have a nexus with enforcement of the sodomy statute. On June 12, 2000, the circuit court granted appellees’ unopposed motion to certify Jegley as representative of a class of all state prosecuting attorneys sued in their official capacities.
Upon consideration of the parties’ cross-motions for summary judgment, the circuit court found: (1) that appellees’ claims were justiciable; (2) that the guarantees of individual liberty provided in the Arkansas Constitution offer greater protection of the right to privacy than those provided by the federal constitution as interpreted by the United States Supreme Court; (3) that Arkan
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; and the protection of public morality provides a rational basis for Arkansas‘s sodomy statute. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1-2(a)(1).
This case is before us pursuant to the circuit court‘s grant of summary judgment to the appellees. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Hall v. Tucker, 336 Ark. 112, 983 S.W.2d 432 (1999); McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. The burden of sustaining the motion for summary judgment is always on the moving party and this court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Summary judgment is proper when the party opposing the motion fails to show that there is a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id. Our
I. Justiciable Controversy
For his first point on appeal, appellant argues that appellees cannot seek a declaratory judgment on the constitutionality of the sodomy statute because they have not shown the existence of a justiciable controversy by way of a credible threat of imminent prosecution. In response, appellees contend they have abundantly demonstrated that they are faced with a credible threat of prosecution under the statute. They further assert that the statute‘s unequal treatment alone, and the stigma and collateral harms it triggers for lesbians and gay men, inflict ongoing, serious injuries long recognized as judicially cognizable. On appeal, the question as to whether there was a complete absence of a justiciable issue shall be reviewed de novo on the record of the trial court. Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001).
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. We disagree with Appellants’ assertion that Appellees’ constitutional challenge must be postponed until one or more of them is arrested and charged with violating the statute. We agree, however, that the chancery court lacks jurisdiction to hear Appellees’ complaint. [Citations and emphasis omitted.]
338 Ark. at 230-31, 996 S.W.2d at 18-19. Based upon the quoted language, the circuit court found on remand that we ruled in Picado I that appellees’ constitutional challenge did not have to be postponed until one or more of them was arrested and charged with violating the statute.
As to the merits of the justiciable-controversy issue, appellant contends that the mere existence of
Declaratory relief is the remedy sought by appellees in this case. 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.
Appellant counters that appellees can show no real, nonspeculative, impending threat of prosecution and, as such, their claims are not justiciable. They cite the court to Poe v. Ullman, 367 U.S. 497 (1961), wherein the United States Supreme Court dismissed a declaratory-judgment action seeking to invalidate certain Connecticut statutes prohibiting the use of contraceptives. The appellants’ complaint alleged that the prosecutor intended to prosecute any offense against Connecticut law and that the prosecutor claimed the use of and advice concerning contraceptives would constitute offenses. Id. The law prohibiting the use of contraceptives had been on the state‘s books since 1879 with only one recorded prosecution under the statute, despite the fact that contraceptives were commonly and notoriously sold in Connecticut drug stores. Id. In determining that the record disclosed no justiciable controversy because it failed to show that the challenged statutes would be enforced against the appellants, the Court stated:
The various doctrines of “standing,” “ripeness,” and “mootness,” which this Court has evolved with particular, though not exclusive, reference to such cases are but several manifestations — each having its own “varied application” — of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action. “This court can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here.” “The party who invokes the power (to annul legislation on grounds of its unconstitutionality) must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement....” [Citations omitted.]
. . . .
It is clear that the mere existence of a state penal statute would constitute insufficient grounds to support a federal court‘s adjudication of its constitutionality in proceedings brought against the State‘s prosecuting officials
if real threat of enforcement is wanting. If the prosecutor expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed here. Eighty years of Connecticut history demonstrate a similar, albeit tacit agreement. The fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. [Citations omitted.]
Id. at 503-04, 507-08 (emphasis added). The Court‘s analysis in Poe was specifically limited to the federal judicial power to declare a state law unconstitutional. It is important to note that the statute at issue in Poe was struck down just four years later in Griswold v. Connecticut, 381 U.S. 479 (1965), after the State of Connecticut prosecuted two people for violating it.
More recently, in Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289 (1979), the United States Supreme Court held a challenge to the criminal penalty provision of Arizona‘s farm labor statute to be justiciable despite the state‘s claim that the provision had not been and might never be applied. 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. [Citations omitted.]
. . . .
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.” Doe v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 745, 35 L. Ed. 2d 201 (1973). But “persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.” Younger v. Harris, 401 U.S. 37, 42, 91 S. Ct. 746, 749, 27 L. Ed. 2d 669 (1971); Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969).
Both Poe and Babbitt involved the question of whether the plaintiffs had established a case or controversy within the meaning of Article III of the U.S. Constitution, as opposed to abstract questions not justiciable by a federal court. See Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. at 297. Thus, neither case is binding on this court‘s determination of whether a justiciable controversy exists in the case now before us. In analyzing these cases, we must recognize that Poe held only that the federal judicial power would not allow the Court to produce an abstract opinion on the constitutionality of a state law unless the law was brought into actual or threatened operation. 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. Babbitt also lessens the federal standard by requiring only impending injury and by acknowledging that plaintiffs are not without fear of prosecution where a state refuses to disavow any intention of utilizing a statute.
Statements by this court on the existence of a justiciable controversy can be found in Donovan v. Priest, supra, and Cummings v. City of Fayetteville, 294 Ark. 151, 741 S.W.2d 638 (1987). The Donovan case involved a taxpayer who brought an action to enjoin the Secretary of State from placing a proposed amendment to the
In the case of Cummings v. City of Fayetteville, supra, a Fayetteville lawyer brought a declaratory-judgment action against the city, seeking a declaration that a statute governing the recall of city directors was unconstitutional. 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. A declaratory judgment will not be granted unless the danger or dilemma of the plaintiff
is present, not contingent on the happening of hypothetical future events: the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote.
Cummings v. City of Fayetteville, 294 Ark. at 154-55, 741 S.W.2d at 639-40 (quoting Anderson, Anderson on Declaratory Judgments § 187 (2d ed. 1951)). We concluded in Cummings that, while the appellant had demonstrated he had an argument with the legislature, it was not one that yet amounted to a controversy that this court should decide. Id.
Here, none of the appellees have been prosecuted under
Though this court clearly requires the existence of a justiciable controversy prior to granting a declaratory judgment, we have heard challenges to the constitutionality of statutes and regulations by persons who did not allege that they had been penalized under the statutes or regulations. We have not always required prosecution or a specific threat of prosecution as a prerequisite for challenging a statute. In Epperson v. Arkansas, 393 U.S. 97 (1968), and State v. Epperson, 242 Ark. 922, 416 S.W.2d 322 (1967), rev‘d, 393 U.S. 97 (1968), both this court and the United States Supreme Court considered a challenge to an Arkansas criminal statute that violated constitutional rights but had not triggered an actual prosecution during its forty-year history.1 Likewise, in
Magruder v. Arkansas Game and Fish Commission, 287 Ark. 343, 698 S.W.2d 299 (1985), we heard a challenge to a regulation by a plaintiff who claimed no specific threat under the regulation. There, a fisherman challenged an AGFC regulation prohibiting the taking of black bass under fifteen inches from an Arkansas lake. The fisherman did not allege that he was either penalized for the conduct or threatened with enforcement of the regulation. This court allowed the fisherman to challenge the regulation, holding:
The appellant alleged he was a licensed fisherman who frequently fished Lake Maumelle. Nothing in the record showed the commission challenged that allegation. If the commission‘s regulation is to be enforced it will have an effect on persons who fish Lake Maumelle regardless of who owns the lake. One whose rights are thus affected by a statute has standing to challenge it on constitutional grounds. Thompson v. Arkansas Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984); Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). The same rule applies to official acts other than statutes, Rogers v. Paul, 328 U.S. 198, 86 S. Ct. 358, 15 L. Ed. 2d 265 (1965), and thus it applies to the regulation in question here.
Id. at 344, 698 S.W.2d at 300.
In Bennett v. National Assoc. for the Advancement of Colored People, 236 Ark. 750, 370 S.W.2d 79 (1963), this court held that a justiciable controversy was presented when the NAACP filed suit seeking a declaratory judgment to the effect that four Acts of the legislature were unconstitutional. There was no allegation that anyone had been prosecuted or specifically threatened with prosecution under the Acts. We said:
[W]e are convinced that the Supreme Court of the United States would hold that the Act was aimed at the NAACP and required a compulsory disclosure of information which was proscribed by the decision of the Supreme Court of the United States in Bates v. City of Little Rock, supra. The whole tenor of the decision in the case of NAACP v. Button leads us to the inevitable conclusion that this Act No. 13 would be promptly declared
Id. at 757-58, 370 S.W.2d at 84. Ultimately, we declared all four of the Acts to be unconstitutional.
Similarly, at least one federal circuit court of appeals has held that a stated present intent to voluntarily cease enforcement, evidenced by the affidavits of local law enforcement officials insisting that they will not enforce the challenged law, will not deprive the court of jurisdiction to hear the challenger‘s claims. United Food And Commercial Workers Int‘l Union v. IBP, Inc., 857 F.2d 422 (8th Cir. 1988) (citing 6A Moore‘s Federal Practice, paragraph 57.18[2] at 57-189 (2d ed. 1987) and Seattle School District No. 1 v. Washington, 633 F.2d 1338, 1342 n. 1 (9th Cir. 1980), aff‘d, 458 U.S. 457 (1982), for the proposition that “[w]here the enforcement of a regulatory statute would cause plaintiff to sustain a direct injury, the action may properly be maintained, whether or not the public officer has ‘threatened’ suit; the presence of the statute is threat enough, at least where the challenged statute is not moribund“).
Other state courts have recently found declaratory-judgment challenges to same-sex sodomy prohibitions to be justiciable even where there was no proof that the laws had been enforced against consenting adults in private or that prosecutors had made literal threats of prosecution. In Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997), homosexual respondents sought a declaratory judgment on the constitutionality of Montana‘s deviate-sexual-conduct statute, which criminalized consensual sex between adults of the same gender. Though the respondents alleged only that they were injured by the mere existence of the statute, the Supreme Court of Montana held that the case presented a justiciable controversy. Id. In Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996), homosexual plaintiffs brought a declaratory judgment action seeking a declaration that Tennessee‘s Homosexual Practices Act violated the Tennessee Constitution. The Court of Appeals of Tennessee held that the plaintiffs had standing and were entitled to maintain an action even though none of them had been prosecuted under the statute. Id.
Clearly this statute is not moribund, and the State has not foresworn enforcement of it. Appellees are precisely the indi
II. Right to Privacy
For his second point on appeal, appellant argues that there is nothing in Arkansas history or case law to support the circuit court‘s conclusion that
In considering the constitutionality of a statute, this court recognizes the existence of a strong presumption that every statute is constitutional. Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001). The burden of rebutting a statute‘s constitutionality is on the party challenging the legislation. Id. 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).
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
Appellees also mount an “as applied” challenge to the constitutionality of
Though it is clear that no fundamental right to engage in homosexual sodomy is protected by the United States Constitution, the textual and structural differences between the Bill of Rights and our own Declaration of Rights mandate that we explore whether such a right exists under the Arkansas Constitu
The Supreme Court of Kentucky has also held that Kentucky‘s criminal statute proscribing consensual homosexual sodomy violated the privacy guarantees of the Kentucky Constitution. Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992). As with our state constitution, no language specifying a “right of privacy” appears in the Kentucky Constitution. Id. However, like Arkansas‘s, Kentucky‘s Bill of Rights speaks of all men as “free and equal” with certain “inherent and inalienable rights,” including the pursuit of liberty and happiness. Id. Based upon its constitutional language and the state‘s tradition of recognizing and protecting individual rights, the Kentucky Supreme Court held that the state‘s sodomy law violated a state right to privacy, saying: “[I]t is not within the competency of government to invade the privacy of a citizen‘s life and to regulate his conduct in matters in which he alone is concerned, or to prohibit him any liberty the exercise of which will
This court must now explore the rights granted to the citizens of Arkansas. No right to privacy is specifically enumerated in the Arkansas Constitution.5 However,
This enumeration of rights shall not be construed to deny or disparage others retained by the people and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government, and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.
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.
Our constitution also recognizes the right of persons to be secure in the privacy of their own homes:
The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.
The rights granted by our constitution are guaranteed to all citizens equally.
In addition to the rights granted by our constitution, we must examine the development of a right to privacy in the statutes, rules, and case law of this state. Privacy is mentioned in more than eighty statutes enacted by the Arkansas General Assembly.6 This frequent reference to the right to privacy indi
A right to privacy is also recognized in the Arkansas Rules of Criminal Procedure. The commentary to Ark. R. Crim. P. 2.2 notes:
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; to be considered are the manner and intensity of the interference, the gravity of the crime involved, and the
circumstances attending the encounter. Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982), cert. denied, 457 U.S. 1118 (1982); Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988).
Comment to Ark. R. Crim. P. 2.2 (2002). See also State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997). Likewise, the commentary to Ark. R. Crim. P. 12.1 provides that “[s]earches of the person shall be carried out with all reasonable regard for privacy. . . .”
In addition, this court has said that “Rule 8.1 is designed and has as its purpose to afford an arrestee protection against an unfounded invasion of liberty and privacy . . . basic and fundamental rights which our state and federal constitutions secure to every arrestee.” Bolden v. State, 262 Ark. 718, 724, 561 S.W.2d 281, 284 (1978). See also Richardson v. State, 283 Ark. 82, 671 S.W.2d 164 (1984). We have also noted a right to privacy in connection with Rule 10.1:
Ark. R. Crim. P. 10.1 (2001) defines a search as follows: “[A]ny intrusion other than an arrest, by an officer under color of authority, upon an individual‘s person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance, if such intrusion, in the absence of legal authority or sufficient consent, would be a civil wrong, criminal offense, or violation of the individual‘s rights under the Constitution of the United States or this state.” (Emphasis added.) The commentary to Rule 10.1 notes that “[t]he key word in the definition is ‘intrusion,’ a term sufficiently broad to encompass any legally cognizable interference with an individual‘s right to privacy. . . . [T]he definition of ‘search’ is extended to cover any intrusions upon the privacy of an individual. [Emphasis omitted.]
Holmes v. State, 347 Ark. 530, 536-37, 65 S.W.3d 860, 863 (2002). Finally, we have declared privacy to be a critical factor in Ark. R. Crim. P. 16.2:
We say in [Rule 16.2] that before evidence is suppressed because of a violation of constitutional rights, a determination must be made as to: the importance of the particular interest violated; the
extent of deviation from lawful conduct; the extent to which the violation was willful; the extent to which privacy was invaded.
Moore v. State, 261 Ark. 274, 278-F, 551 S.W.2d 185, 190 (1977).
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.” Fouse v. State, 337 Ark. 13, 23, 989 S.W.2d 146, 150-51 (1999); Garner v. State, 307 Ark. 353, 358-59, 820 S.W.2d 446, 449-50 (1991). The right-to-privacy concept has even been mentioned in connection with an earlier challenge to the predecessor statute to section
In the area of civil law, this court has been in the forefront in recognizing the existence of four actionable forms of the tort of invasion of privacy: (1) appropriation; (2) intrusion; (3) public disclosure of private facts; and (4) false light in the public eye. See Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002); Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979); Olan Mills v. Dodd, 234 Ark. 495, 353 S.W.2d 22 (1962). See also Comment, The Right of Privacy, 6 Ark. L. Rev. 459 (1952). Likewise, we have discussed an individual‘s privacy interests in the context of
In considering our constitution together with the statutes, rules, and case law mentioned above, it is clear to this
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.
Carroll v. Johnson, 263 Ark. 280, 288, 565 S.W.2d 10, 15 (1978). In accordance with the language in Carroll, we hold that the fundamental right to privacy implicit in our law protects all private, consensual, noncommercial acts of sexual intimacy between adults. Because
As the right to privacy is a fundamental right, we must analyze the constitutionality of
III. Equal Protection
The circuit court ruled that
The guarantee of equal protection serves to “[protect] minorities from discriminatory treatment at the hands of the majority. Its purpose is not to protect traditional values and practices, but to call into question such values and practices when they operate to burden disadvantaged minorities. . . .” Commonwealth v. Wasson, 842 S.W.2d at 499 (quoting Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) (Norris, J. concurring)). Arkansas‘s Equal Rights Amendment specifically states: ”
According to the argument advanced by appellant, the State of Arkansas has a legitimate interest in criminalizing homosexual
Though homosexual citizens do not constitute a protected class, they are a separate and identifiable class for purposes of equal-protection analysis. Under well-settled equal-protection analysis, any legislation that distinguishes between two groups of people must be rationally related to a legitimate governmental purpose. Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). In Ester v. Nat‘l Home Centers, we set out our rational-basis test as follows:
The party challenging a statute‘s constitutionality has the burden of proving that the act lacks a rational relationship to a legitimate objective of the legislature under any reasonably conceivable set of facts. Arkansas Hosp. Ass‘n v. Arkansas St. Bd. Of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). See also Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Winters v. State, 301 Ark. 127, 782 S.W.2d 566 (1990). It is not our role to discover the actual basis for the legislation. Arkansas Hosp. Ass‘n, supra; Streight v. Ragland, supra. 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. Ass‘n., supra.
335 Ark 356, 364-65, 981 S.W.2d 91, 96 (1998) (emphasis added).
To justify the State in . . . interposing its authority in behalf of the public, it must appear — first, that the interests of the public . . . require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.
Hand v. H&R Block, Inc., 258 Ark. 774, 781, 528 S.W.2d 916, 920 (1975) (quoting Lawton v. Steele, 152 U.S. 133 (1894)). In the same case, we noted that “the police power can only be exercised to suppress, restrain, or regulate the liberty of individual action, when such action is injurious to the public welfare.” Id. at 782, 528 S.W.2d at 921 (quoting State v. Hurlock, 185 Ark. 807, 49 S.W.2d 611 (1932)). “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Romer v. Evans, 517 U.S. 620, 634 (1996) (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)) (emphasis in original). Government cannot avoid the strictures of equal protection simply by deferring to the wishes or objections of some fraction of the body politic. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 (1985).
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. As stated by the Supreme Court of Kentucky:
Certainly, the practice of deviate sexual intercourse violates traditional morality. But so does the same act between heterosexuals, which activity is decriminalized. . . . The issue here is not whether sexual activity traditionally viewed as immoral can be punished by society, but whether it can be punished solely on the basis of sexual preference.
Commonwealth v. Wasson, 842 S.W.2d at 499. Appellant offers no reason why this conduct is injurious to the public welfare when engaged in by members of the same sex but completely protected when engaged in by members of opposite sexes. Several of our sister states, when striking down analogous sodomy statutes, have looked to the American Law Institute‘s Model Penal Code and Commentaries, which state in relevant part:
The usual justification for laws against such conduct is that, even though it does not injure any identifiable victim, it contributes to moral deterioration of society. 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.
ALI, Model Penal Code, Part II, 1980 Ed., pp. 362-63.
In discussing the argument that advancement of the morals of Tennessee citizens provided justification for that state‘s Homosexual Practices Act, the Court of Appeals of Tennessee noted: “We recognize that many of the laws of this State reflect ‘moral choices’ regarding the standard of conduct by which the citizens of this State must conduct themselves. However, we also recognize that when these ‘moral choices’ are transformed into law, they have constitutional limits.” Campbell v. Sundquist, 926 S.W.2d at 264. In similar form, Kentucky concluded that there was no rational basis for criminalizing sexual activity solely on the basis of majoritarian sexual preference. Commonwealth v. Wasson, supra. Kentucky relied upon Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980), for guidance. In Bonadio, the Supreme Court of Pennsylvania said:
With respect to regulation of morals, the police power should properly be exercised to protect each individual‘s right to be free from interference in defining and pursuing his own morality but not to enforce a majority morality on persons whose conduct does not harm others. “No harm to the secular interests of the community is involved in atypical sex practice in private between consenting adult partners.” [Citations omitted.]
490 Pa. 91, 96, 415 A.2d 47, 50 (1980).
We agree that the police power may not be used to enforce a majority morality on persons whose conduct does not harm others. The Arkansas Equal Rights Amendment serves to protect minorities at the hands of majorities. As noted in Bonadio, the State has a clear and proper role to protect the public from offensive displays of sexual behavior, to protect people from forcible sexual contact, and to protect minors from sexual abuse by adults. Commonwealth v. Bonadio, supra. However, criminal statutes, including those proscribing indecent exposure, rape, statutory rape, and the like, are in existence to protect the public from precisely such harms.
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 rights and property rights not be subjected to arbitrary or oppressive, rather than reasonable, invasion. See Union Carbide Carbon Corp. v. White River District, 224 Ark. 558, 275 S.W.2d 455 (1955). See also Ports Petroleum Co. v. Tucker, 323 Ark. 680, 916 S.W.2d 749 (1996). We echo Kentucky in concluding that “we can attribute no legislative purpose to this statute except to single out homosexuals for different treatment for indulging their sexual preference by engaging in the same activity heterosexuals are now at liberty to perform.” Commonwealth v. Wasson, 842 S.W.2d at 501.
Affirmed.
BROWN and HANNAH, JJ., concur.
THORNTON, J., and ARNOLD, C.J., dissent.
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.
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
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
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 (
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
HANNAH, J., joins.
RAY THORNTON, Justice, dissenting. In my view, the majority has issued an advisory opinion declaring
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; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.
Id. (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339 (1892)).
When this court previously reviewed the constitutionality of the statute that preceded
If social changes have rendered our sodomy statutes unsuitable to the society in which we now live, we need not be concerned about the matter because there is a branch of our government within whose purview the making of appropriate adjustment and changes peculiarly lies.
While there are differing views among members of the court on the question whether the case before us presents a justiciable issue, all of us agree that our earlier decision in Bryant v. Picado, 338 Ark. 227, 996 S.W.2d 17 (1999), did not establish justiciability as part of the law of the case, and that the trial court‘s finding on this issue was an incorrect interpretation of our opinion. For that reason, I want to specifically outline my analysis of the issue of justiciability and my conclusion that no justiciable case or controversy was presented in the case before us.
Appellees’ complaint was brought pursuant to
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.
We have noted that actual litigation is not required for relief under our declaratory-judgment statute. Jessup v. Carmichael, 224 Ark. 230, 272 S.W.2d 438 (1954). However, the statue does require that litigation be pending or threatened. Id. We have also noted that while
Our declaratory judgment act was not intended to allow any question to be presented by any person: the matters must be justiciable.
* * *
Since the purpose of the declaratory relief is to liquidate uncertainties and interpretations which might result in future litigation it may be maintained when these purposes may be subserved. The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained, may be summarized as follows: (1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination.
* * *
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. A declaratory judgment will not be granted unless the danger or dilemma of the plaintiff is present, not contingent on the happening of hypothetical future events; the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote.
Id. (quoting Anderson on Declaratory Judgments (2d. ed. 1951)); see also Cummings v. City of Fayetteville, 294 Ark. 151, 741 S.W.2d 638 (1987) (holding that there was no justiciable controversy and that while many laws may be easily subject to challenge we may only review such matters in a proper law suit).
The facts of this case are indistinguishable from those considered by the Nevada Supreme Court in Doe v. Bryan, 102 Nev. 523, 728 P.2d 443 (1986). 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. Id. The court explained:
Nevada has a long history of requiring an actual justiciable controversy as a predicate to judicial relief. Moreover, litigated matters must present an existing controversy, not merely the prospect of a future problem.
Id. In affirming the trial court‘s granting of a motion to dismiss, the Nevada Court held:
Appellants here allege that they have never been arrested for violating NRS 201.190 and the record does not reflect any enforcement efforts by the State against appellants or others.
There is no indication that appellants are facing an immediate threat of arrest for violation of NRS 201.190 or that the risk
of prosecution is, to any degree, more than imaginary or speculative. Therefore, this court affirms the dismissal of appellants’ complaint by the district court because appellants lacked standing to seek declaratory relief.
Doe is indistinguishable from the case now before us. We can look to our sister state for guidance in determining that the appellees’ claims in this case are nonjusticiable.
However, the fact that appellees have not been prosecuted or suffered an actual threat of arrest is not the end of our justiciability analysis. Appellees may also establish a justiciable controversy if they can establish that they have suffered actual harm caused by the statute. To determine whether appellees have established that they suffered actual harms based upon
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; (4) that they fear prosecution because police officers are free to arrest appellees for violating the statute; (5) that they fear prosecution because in Texas the sodomy law is enforced; (6) that they fear arrest because some police officers are hostile towards gay people; and (7) that they fear prosecution because neither appellant nor the other members of his class have repudiated enforcement of the statute.
A review of appellees’ allegations demonstrates that appellees have failed to establish a justiciable controversy. While appellees
Because appellees have failed to establish a justiciable controversy, any opinion delivered by this court can only be advisory. It has been well settled that this court does not render advisory opinions nor answer academic questions. See, Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995); Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); and Neeley v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986).
By embarking upon a path of writing advisory opinions declaring statues unconstitutional in a response to a petition for declaratory judgment without requiring that a justiciable controversy be presented, we step away from our responsibilities in the judicial branch and act as a superlegislative body with an assumed authority to correct mistakes that the court from time to time may believe have been made by our General Assembly.
I am authorized to state that Chief Justice ARNOLD joins in this dissent.
Notes
Nine states have invalidated sodomy laws by judicial decision: Georgia in Powell v. State, 510 S.E.2d 18 (1998); Kentucky in Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992); Maryland in Williams v, State, 1998 Extra LEXIS 260, Baltimore City Circuit Court, (January 14, 1999) (trial court holding that sodomy statute did not apply to consensual, noncommercial, private sexual behavior. The decision was not appealed by the State); Massachusetts in Gay and Lesbian Advocates & Defenders v. Attorney General, 436 Mass. 132, 763 N.E.2d 38 (2002); Minnesota in Doe, et al. v. Ventura, et al., 2001 WL 543734, No. 01-489 (Dist. Ct. Hennepin County May 15, 2001) (neither the State of Minnesota nor Attorney General Mike Hatch appealed the lower court decision); Montana in Gryczan v. Montana, 942 P.2d 112 (1997); New York in People v. Onofre, 415 N.E.2d 936 (N.Y. 1980), cert. denied, 451 U.S. 987 (1981); Pennsylvania in Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980) (the state legislature later repealed the law in 1995); Tennessee in Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996).
Six states, including Arkansas, maintain “same-sex” sodomy statutes: Arkansas,