Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/43

642 unconstitutional a law passed by the legislature and signed into law by the governor. I respectfully dissent on the grounds that there was no justiciable case before us for decision, and because I believe we should heed the principles articulated by Justice Felix Frankfurter, writing for the United States Supreme Court, in Poe v. Ullman, 367 U.S. 497 (1961). Justice Frankfurter cautioned courts that they should use their powers to overturn legislative acts only when a case is properly before the court, when he wrote:

Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.

Id. (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339 (1892)).

When this court previously reviewed the constitutionality of the statute that preceded Ark. Code Ann. § 5-14-122, we recognized the role of the legislative branch in adoption and changing of laws. See Carter & Burkhead v. State, 255 Ark. 225, 500 S.W.2d 368 (1973). In Carter, which held Arkansas's previous sodomy statute constitutional, the court expressed a recognition that the responsibility of changing unsuitable statutory provisions is delegated to the legislative branch. We explained:

If social changes have rendered our sodomy statutes unsuitable to the society in which we now live, we need not be concerned about the matter because there is a branch of our government within whose purview the making of appropriate adjustment and changes peculiarly lies.

Id.