Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/25

624 right to privacy as guaranteed by the Arkansas Constitution. The Arkansas Constitution, like the U.S. Constitution, does not contain an explicit guarantee of the right to privacy. The development of the federal right to privacy is instructive. In his dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928), overruled in part by Katz v. Ohio, 389 U.S. 347 (1967), Mr. Justice Brandeis characterized "the right to be let alone" as "the right most valued by civilized men." The Supreme Court has since recognized a penumbra of rights emanating from the First Amendment and protecting privacy from governmental intrusion. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (finding a fundamental right to marital privacy). The Court has also held that there is a right to privacy founded in both the Fourteenth Amendment's concept of personal liberty and in the penumbras of the Bill of Rights. See Roe v. Wade, 410 U.S. 113 (1973). However, in Bowers v. Hardwick, 478 U.S. 186 (1986), the Court held that the U.S. Constitution provides no fundamental right to engage in homosexual sodomy, noting that the conduct has historically been condemned. In Bowers, the Court reversed the Eleventh Circuit Court of Appeals, which had concluded that Georgia's sodomy statute violated the respondent's fundamental rights because his homosexual activity was a private and intimate association beyond the reach of state regulation. Id.

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