Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/24

Rh Section 2, of the Arkansas Constitution protects not only rights made explicit therein, but also "inherent and inalienable" rights and urge that, while the Declaration of Rights does not expressly mention a right to privacy, Article 2, Section 2, contains guarantees of individual liberty and happiness.

[14, 15]. 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).

[16, 17] 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 First Amendment rights. We disagree. Both United States v. Salerno, 481 U.S. 739 (1987), and Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998), make it clear that it is the "overbreadth" doctrine alone that is not recognized outside the context of the First Amendment. With regard to facial challenges in general, this court has said facial invalidation of a statute is appropriate if it can be shown "that under no circumstances can the statute be constitutionally applied." Linder v. Linder, 348 Ark. 322, 349, 72 S.W.3d 841, 856 (2002) (citing Salerno, 481 U.S. at 745). Here, appellant is correct that appellees have not shown Ark. Code Ann. § 5-14-122 to be facially invalid. There is no allegation that the statute's prohibition of conduct involving animals is unconstitutional. Absent a showing that the sodomy statute can never be constitutionally applied, we cannot find the statute facially unconstitutional.

[18] Appellees also mount an "as applied" challenge to the constitutionality of Ark. Code Ann. § 5-14-122 and urge this court to affirm the trial court's ruling that the statute violates their