Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/42

Rh no valid reason for doing so. The State posits that it is enforcing Arkansas morals as part of its police power. But pronouncing moral judgments for bedroom behavior that criminalizes the conduct of this class of citizens exceeds the bounds of legislative authority and amounts to little more than a government morality fixed by a majority of the General Assembly. That flies in the face of the basic constitutional rights of independence, freedom, happiness, and security. Other states have noted how far afield the General Assembly roams when it intrudes into bedrooms of this class of consenting adults. See, e.g., Powell v. State, supra; Gryczan v. State, supra; Campbell v. Sundquist, supra; Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1993). I agree, and would only add that the bedroom for these adults is one area where people need a good "leaving alone" by their government and police agencies.

Societal mores change. Thirty years ago I daresay most religious denominations would have supported the existence of the sodomy statute or something akin to it. Today, five religious denominations have filed an amicus brief in this case challenging the statute's constitutionality. The unmistakable trend, both nationally and in Arkansas, is to curb government intrusions at the threshold of one's door and most definitely at the threshold of one's bedroom. I concur in this trend, and for that reason, I join the majority opinion to the extent it holds that the sodomy statute is unconstitutional as applied to consenting adult couples engaged in noncommercial sexual conduct in the privacy of their homes.

With respect to public sexual conduct prohibited under the sodomy statute, the General Assembly has a legitimate interest in criminalizing public acts of sexual indecency and has done so for all persons under the Public Sexual Indecency Act, codified at Ark. Code Ann. § 5-14-111 (Repl. 1997). In short, under § 5-14-111, there is not different treatment of homosexuals and heterosexuals. Because the legitimate government interest is satisfied by § 5-14-111, there is no reason to retain § 5-14-122 on the books. For that reason, I concur with the majority opinion.

H, J., joins.

 T, Justice, dissenting. In my view, the majority has issued an advisory opinion declaring