Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/11

Rh fundamental right to privacy encompasses the right of appellees to engage in consensual, private, noncommercial, sexual conduct; (4) that Ark. Code Ann. § 5-14-122 is in violation of such rights as afforded by Article 2, Section 2, of the Arkansas Constitution; and (5) that Ark. Code Ann. § 5-14-122 violates rights of equal protection as guaranteed by the Arkansas Constitution at Article 2, Section 18. Appellant now appeals from that order, filed on March 23, 2001, granting appellees' motion for summary judgment and denying appellant's motion for summary judgment.

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).

[1–5] 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