Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/39

638 [39] The General Assembly cannot act, under the cloak of police power or public morality, arbitrarily to invade personal liberties of the individual citizen. Ports Petroleum Co. v. Tucker, supra. Section 5-14-122 does invade such liberties, arbitrarily condemning conduct between same-sex actors while permitting the exact same conduct among opposite-sex actors. Appellant has failed to demonstrate how such a distinction serves a legitimate public interest. Absent some rational basis for this disparate treatment under the law, we must now hold that Ark. Code Ann. § 5-14-122 is unconstitutional as violative of Arkansas's Equal Rights Amendment.

Affirmed.

B and H, JJ., concur.

T, J., and A, C.J., dissent.

 L. B, Justice, concurring. I concur with the majority opinion but would only strike down the sodomy statute primarily because it applies to the noncommercial sexual conduct of consenting gay or lesbian adult couples in their homes. The State would have it that government agencies should be permitted to intrude into the bedrooms of the homes of consenting gay and lesbian adults to police whether they are engaged in noncommercial sex. This is so even while the bedrooms of married and unmarried heterosexual couples would not be subjected to such government interference and scrutiny, because they are not covered by the Arkansas sodomy statute. The State's position is totally at odds with the bedrock principles of independence, freedom, happiness, and security which form the core of our individual rights under the Arkansas Constitution:

All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

Ark. Const. Art. 2, § 2.