Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/37

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Certainly, the practice of deviate sexual intercourse violates traditional morality. But so does the same act between heterosexuals, which activity is decriminalized The issue here is not whether sexual activity traditionally viewed as immoral can be punished by society, but whether it can be punished solely on the basis of sexual preference.

Commonwealth v. Wasson, 842 S.W.2d at 499. Appellant offers no reason why this conduct is injurious to the public welfare when engaged in by members of the same sex but completely protected when engaged in by members of opposite sexes. Several of our sister states, when striking down analogous sodomy statutes, have looked to the American Law Institute's Model Penal Code and Commentaries, which state in relevant part:

The usual justification for laws against such conduct is that, even though it does not injure any identifiable victim, it contributes to moral deterioration of society. One need not endorse wholesale repeal of all "victimless" crimes in order to recognize that legislating penal sanctions solely to maintain widely held concepts of morality and aesthetics is a costly enterprise. It sacrifices personal liberty, not because the actor's conduct results in harm to another citizen but only because it is inconsistent with the majoritarian notion of acceptable behavior.

ALI, Model Penal Code, Part II, 1980 Ed., pp. 362-63.

In discussing the argument that advancement of the morals of Tennessee citizens provided justification for that state's Homosexual Practices Act, the Court of Appeals of Tennessee noted: "We recognize that many of the laws of this State reflect 'moral choices' regarding the standard of conduct by which the citizens of this State must conduct themselves. However, we also recognize that when these 'moral choices' are transformed into law, they have constitutional limits." Campbell v. Sundquist, 926 S.W.2d at 264. In similar form, Kentucky concluded that there was no rational basis for criminalizing sexual activity solely on the basis of majoritarian sexual preference. Commonwealth v. Wasson, supra. Kentucky relied upon Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980), for guidance. In Bonadio, the Supreme Court of Pennsylvania said: