Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/36

Rh [35, 36] This court has said that the police power is very broad and comprehensive and embraces maintenance of good order, quiet of the community, and the preservation of public morals. Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973). We further stated in Carter that, "the legislature may, within constitutional limitations, prohibit all things hurtful to the comfort, safety, and welfare of the people" Id. at 231, 500 S.W.2d at 372 (emphasis added). However, this court has also embraced language from the United States Supreme Court announcing the classic statement of the rule on police power and limiting the police power to that which is not unduly oppressive:

To justify the State in interposing its authority in behalf of the public, it must appear—first, that the interests of the public  require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.

Hand v. H&R Block, Inc., 258 Ark. 774, 781, 528 S.W.2d 916, 920 (1975) (quoting Lawton v. Steele, 152 U.S. 133 (1894)). In the same case, we noted that "the police power can only be exercised to suppress, restrain, or regulate the liberty of individual action, when such action is injurious to the public welfare." Id. at 782, 528 S.W.2d at 921 (quoting State v. Hurlock, 185 Ark. 807, 49 S.W.2d 611 (1932)). "[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Romer v. Evans, 517 U.S. at 634 (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)) (emphasis in original). Government cannot avoid the strictures of equal protection simply by deferring to the wishes or objections of some fraction of the body politic. City of Cleburne v. Cleburne Living Center, 473 U.S. at 448.

The statute at issue in this case restrains the liberty of those who wish to engage in private, consensual acts of same-sex sodomy. There is no prohibition against members of opposite sexes engaging in the same conduct. As stated by the Supreme Court of Kentucky: