Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/33

632 court that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution. Moreover, it is important to point out that we have recognized due process as a living principle. Justice Frankfurter's opinion in Wolf v. Colorado, 338 U.S. 25 (1949), has been quoted with approval by this court:

It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights.

Carroll v. Johnson, 263 Ark. 280, 288, 565 S.W.2d 10, 15 (1978). In accordance with the language in Carroll, we hold that the fundamental right to privacy implicit in our law protects all private, consensual, noncommercial acts of sexual intimacy between adults. Because Ark. Code Ann. § 5-14-122 burdens certain sexual conduct between members of the same sex, we find that it infringes upon the fundamental right to privacy guaranteed to the citizens of Arkansas.

[30, 31] As the right to privacy is a fundamental right, we must analyze the constitutionality of Ark. Code Ann. § 5-14-122 under strict-scrutiny review. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). When a statute infringes upon a fundamental right, it cannot survive unless "a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out [the] state interest." Thompson v. Arkansas Social Services, 282 Ark. 369, 374, 669 S.W.2d 878, 880 (1984). According to the circuit court's order in this case, appellant concedes that the State can offer no compelling state interest sufficient to justify the sodomy statute. Therefore, Arkansas's sodomy statute at Ark. Code Ann. § 5-14-122 is unconstitutional as applied to private, consensual, noncommercial, same-sex sodomy.

The circuit court ruled that Ark. Code Ann. § 5-14-122 impermissibly criminalizes conduct solely on the basis of the sex of the participants in violation of Arkansas's Equal Rights