Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/41

640 Texas, Kansas, and Oklahoma. Georgia recently reversed itself two years after upholding its sodomy statute and struck it down as a violation of the right to privacy, as incorporated in the due process clause of the Georgia Constitution. Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998), rever'g Christensen v. State, 266 Ga. 474, 468 S.E.2d 188 (1996). The Georgia reversal is symptomatic of the national sea change in attitude towards statutes such as these. The trend, even in Arkansas, has been for the legislature to chip away at the sodomy statute. In 1975, the General Assembly repealed the sodomy statute applicable to homosexuals and heterosexuals, which made the crime a felony punishable by up to twenty-one years in prison. See Act 928 of 1975. In 1977, the statute found its way back into the Criminal Code but this time as a misdemeanor punishable by up to a year in jail and applicable only to sexual conduct by those of the same sex. Act 828 of 1977, now codified at Ark. Code Ann. § 5-14-122 (Repl. 1997).

This court has upheld enforcement of the predecessor sodomy statute against prohibited acts committed in a parked automobile by two men. See Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973), ''cert. denied, 416 U.S. 905 (1974); Connor v. State'', 253 Ark. 854, 490 S.W.2d 114 (1973). In both instances, this court made the point that the acts prosecuted did not fall within a zone of privacy but were public acts, leaving open the question of liability for intimate sexual acts in the privacy of one's home. The issue now before this court is whether to permit enforcement of the statute for conduct that by everyone's admission takes place in private, that is, in the sanctuary of the bedroom. That is an altogether different scenario from what took place in Carter and Connor. We, of course, have statutes in the Criminal Code prohibiting public indecency such as occurred in the Carter and Connor cases. See Ark. Code Ann. § 5-14-111 (Repl. 1997).

I agree with the majority that the right to privacy is a fundamental right under the Arkansas Constitution and that it is violated by enforcement of the sodomy statute against consenting adults engaged in noncommercial sexual activity in the bedroom of their homes. I further agree that enforcement of the act against one group of citizens violates the equal protection clause of the Arkansas Constitution (Article 2, section 3) and that the State has