Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/3

602 .—Where the Arkansas sodomy statute, Ark. Code Ann. § 5-14-122 (Repl. 1997), was clearly not moribund, and the State had not foresworn enforcement of it; where appellees were precisely the individuals against whom section § 5-14-122 was intended to operate; where appellees admitted to presently engaging in behavior that violated the statute and their intent to engage in future behavior that would violate the law; and where the State had not disavowed any intention of invoking the criminal-penalty provisions of Ark. Code Ann. § 5-14-122, the supreme court could not say that appellees were without some reason to fear prosecution for violation of the sodomy statute; the discretionary acts of the State's prosecutors could effectively bar shut the courthouse doors and protect the sodomy statute from constitutional challenge.
 * 1) C.—In considering the constitutionality of a statute, the supreme court recognizes the existence of a strong presumption that every statute is constitutional; the burden of rebutting a statute's constitutionality is on the party challenging the legislation.
 * 2) C.—An act should be struck down only when there is a clear incompatibility between the act and the constitution; 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.
 * 3) C.—It is the "overbreadth" doctrine alone that is not recognized outside the context of the First Amendment; with regard to facial challenges in general, the supreme court has said that facial invalidation of a statute is appropriate if it can be shown that under no circumstances can the statute be constitutionally applied.
 * 4) C.—Appellees did not show Ark. Code Ann. § 5-14-122 to be facially invalid; there was no allegation that the statute's prohibition of conduct involving animals is unconstitutional; absent a showing that the sodomy statute could never be constitutionally applied, the supreme court could not find the statute facially unconstitutional.
 * 5) C.—The Arkansas Constitution, like the United States