Brief Filed: 10/01
Court: Arkansas Supreme Court
Year of Decision: 2002

Issue: Whether an Arkansas statute that makes sodomy between same-sex couples a crime is constitutional

Index Topics: Sexual Orientation (sodomy)

Facts: This is an action challenging the constitutionality of an Arkansas law that makes sodomy between same-sex couples a crime. The plaintiffs are seven lesbian and gay Arkansans who sought a declaratory judgment that the statute was unconstitutional. The defendant is sued in his capacity as a county prosecuting attorney and on behalf of all other prosecuting attorneys in Arkansas. The trial court held that the law is unconstitutional under the Arkansas Constitution. That decision was appealed to the Arkansas Supreme Court.

APA's Position: APA submitted a brief arguing that the proscribed sexual conduct is a normal part of the intimate relations of Americans and that same-sex sexual conduct is an important part of long-term intimate relationships for many gay men and lesbians. The brief explained the nature of sexual orientation, noting that homosexuality is common, generally not chosen and is resistant to change, is not a disorder, and does not affect one's ability to contribute to society. The brief further argued that the Arkansas statute directly harms gay men and lesbians in that it is likely to reinforce hostility, discrimination, and violence against lesbians and gay men, is psychologically damaging to gay men and lesbians, and that the statute is likely to interfere with law enforcement efforts to deter violent crimes against gay men and lesbians. It also argued that the statute interferes with health education efforts designed to encourage safer sexual practices.

Result: The Arkansas Supreme court overturned the state law that bars sexual relations between people of the same gender in a ruling recognizing that lesbians and gay men share the same constitutional rights as others to privacy. The court's decision upheld the lower court ruling that a 1977 law prohibiting consensual, noncommercial sex acts involving people of the same sex violates the state's constitution. Five of the seven justices agreed that the law violates a fundamental right to privacy and the guarantee of equal protection of the laws. The decision noted that the 1977 law condemned conduct among same-sex couples while permitting the same conduct among heterosexual couples, adding that the state "has failed to demonstrate how such a distinction serves a legitimate public interest."

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