Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/23

622 against whom section § 5-14-122 is intended to operate. As they admit to presently engaging in behavior that violates the statute and intending to engage in future behavior that violates the law, and as the State has not disavowed any intention of invoking the criminal-penalty provisions of Ark. Code Ann. § 5-14-122, we cannot say that appellees are without some reason to fear prosecution for violation of the sodomy statute. See Magruder v. Arkansas Game and Fish Commission, 287 Ark. 343, 698 S.W.2d 299 (1985); ''Bennett v. National Assoc. for the Advancement of Colored People'', 236 Ark. 750, 370 S.W.2d 79 (1963); Babbitt v. United Farm Workers Nat'l Union, 422 U.S. 289 (1979); and Epperson v. Arkansas, 393 U.S. 97 (1968). To hold otherwise would leave appellees trapped in a veritable Catch-22. As long as Arkansas prosecutors exercise their discretion and fail to prosecute those individuals who violate the sodomy statute through consensual, private behavior, appellees and those similarly affected by the statute would have no choice but to suffer the brand of criminal impressed upon them by a potentially unconstitutional law. The discretionary acts of the State's prosecutors could effectively bar shut the courthouse doors and protect the sodomy statute from constitutional challenge. We cannot allow this to happen.

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 Article 2, Section 2, of the Arkansas Constitution confers a constitutionally protected right to privacy encompassing consensual, private, homosexual sodomy. He asserts that, while Article 2's Declaration of Rights arguably recognizes certain zones of privacy, nothing in the text of the provisions either implicitly or explicitly gives rise to a separate, independent right of privacy encompassing homosexual sodomy. Furthermore, appellant claims that no Arkansas case has ever recognized a right to privacy and that the circuit court's finding of such a right is based upon an impermissible interpretation of the Arkansas Constitution. Appellees respond that Arkansas's Constitution can be held to provide greater privacy rights than the United States Constitution. They focus on the fact that Article 2,