Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/34

Rh. Ark. Const art. 2, § 18. On appeal, appellant contends that the statute does not violate the Equal Rights Amendment because the statute does not make an impermissible gender classification or require unequal treatment between genders. According to appellant, the statutory classification that appellees promote is based on sexual orientation rather than on sex. Appellees, on the other hand, contend that the trial court was correct in finding the sodomy statute creates a gender classification.

[32, 33] The guarantee of equal protection serves to "[protect] minorities from discriminatory treatment at the hands of the majority. Its purpose is not to protect traditional values and practices, but to call into question such values and practices when they operate to burden disadvantaged minorities" Commonwealth v. Wasson, 842 S.W.2d at 499 (quoting Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) (Norris, J. concurring)). Arkansas's Equal Rights Amendment specifically states: "The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens." Ark. Const. art. 2, § 18. A statute violates the federal Equal Protection Clause on the basis of sex where it provides dissimilar treatment for men and women who are similarly situated. Reed v. Reed, 404 U.S. 71 (1971). For classifications based upon gender, an intermediate level of scrutiny is in order. ''Wengler v. Druggist Mutual Ins. Co., 446 U.S. 142 (1980); Orr v. Orr'', 440 U.S. 268 (1979). To withstand an intermediate level of scrutiny, classifications by gender must serve important governmental objectives and be substantially related to achievement of those objectives. Conser v. Biddy, 274 Ark. 367, 625 S.W.2d 457 (1981); Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979). Appellant in this case attempts to justify the statute at issue only in accordance with a rational-basis standard of review. He has not shown that the statute could withstand intermediate scrutiny. In any event, as will be discussed below, we need not delve into an intermediate analysis as appellant has not offered sufficient evidence to show that Ark. Code Ann. § 5-14-122 can withstand a rational-basis review.

According to the argument advanced by appellant, the State of Arkansas has a legitimate interest in criminalizing homosexual