Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/40

Rh If anything has been sacrosanct over the past hundred and fifty years under the common law of Arkansas, it is the principle that a person's home is his castle. See, e.g., McGuire v. Cook, 13 Ark. 448, 458 (1853) ("[T]he house of every man is to him as his castle and fortress, as well for his defense against injury and violence as for repose."). That principle continues undiluted and undiminished even to the present day. See, e.g., Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). If such is true of the home, how much more so of the bedroom?

The majority opinion speaks eloquently on why these plaintiffs have standing to bring this action and why this matter is justiciable. I agree completely that the State has placed the plaintiffs in a catch-22 situation. According to the State, they are dubbed criminals but have no recourse in the courts to correct this status. The State's counsel at oral argument contended that the, sodomy statute is a "dead letter" and that no prosecutor currently enforces it. Nor has it been enforced for decades, counsel adds. In the same breath, she urges that the statute must be kept on the books and that the plaintiffs should be prevented from challenging it, even while the statute makes them criminals. It is indisputable that the sodomy statute hangs like a sword of Damocles over the heads of the plaintiffs, ready to fall at any moment.

The idea of keeping a criminal statute on the books which no one wants to enforce is perverse in itself. This brands the plaintiffs with a scarlet letter that the State contends they should have no chance to contest in the courts of this State. The State's position comes perilously close to complete inconsistency and smacks of a no-lose proposition for the government and a no-win situation for the plaintiffs. Other sister states have refused to countenance this argument and have permitted attacks on their sodomy statutes by plaintiffs who admit to the conduct but who have not been arrested. See, e.g., Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997); Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996).

Arkansas is reportedly one of four remaining states that criminalizes gay and lesbian sexual conduct between consenting adult couples in the bedroom of a home. The other three are