Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/38

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With respect to regulation of morals, the police power should properly be exercised to protect each individual's right to be free from interference in defining and pursuing his own morality but not to enforce a majority morality on persons whose conduct does not harm others. "No harm to the secular interests of the community is involved in atypical sex practice in private between consenting adult partners." [Citations omitted.]

490 Pa. 91, 96, 415 A.2d 47, 50 (1980).

[37] We agree that the police power may not be used to enforce a majority morality on persons whose conduct does not harm others. The Arkansas Equal Rights Amendment serves to protect minorities at the hands of majorities. As noted in Bonadio, the State has a clear and proper role to protect the public from offensive displays of sexual behavior, to protect people from forcible sexual contact, and to protect minors from sexual abuse by adults. Commonwealth v. Bonadio, supra. However, criminal statutes, including those proscribing indecent exposure, rape, statutory rape, and the like, are in existence to protect the public from precisely such harms.

[38] In conclusion, appellant has not offered sufficient reasoning to show that notions of a public morality justify the prohibition of consensual, private intimate behavior between persons of the same sex in the name of the public interest. There is no contention that same-sex sodomy implicates the public health or welfare, the efficient administration of government, the economy, the citizenry, or the promotion of the family unit. We have consistently held that legislation must bear a real or substantial relationship to the protection of public health, safety and welfare, in order that personal. rights and property rights not be subjected to arbitrary or oppressive, rather than reasonable, invasion. See Union Carbide Carbon Corp. v. White River District, 224 Ark. 558, 275 S.W.2d 455 (1955). See also Ports Petroleum Co. v. Tucker, 323 Ark. 680, 916 S.W.2d 749 (1996). We echo Kentucky in concluding that "we can attribute no legislative purpose to this statute except to single out homosexuals for different treatment for indulging their sexual preference by engaging in the same activity heterosexuals are now at liberty to perform." Commonwealth v. Wasson, 848 S.W.2d at 501.