Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/47

646 of prosecution is, to any degree, more than imaginary or speculative. Therefore, this court affirms the dismissal of appellants' complaint by the district court because appellants lacked standing to seek declaratory relief.

Id.

Doe is indistinguishable from the case now before us. We can look to our sister state for guidance in determining that the appellees' claims in this case are nonjusticiable.

However, the fact that appellees have not been prosecuted or suffered an actual threat of arrest is not the end of our justiciability analysis. Appellees may also establish a justiciable controversy if they can establish that they have suffered actual harm caused by the statute. To determine whether appellees have established that they suffered actual harms based upon Ark. Code Ann. § 5-14-122, it is useful to look to the pleadings. In their complaint, appellees alleged: (1) that they have a genuine, specific, and concrete fear of prosecution under the statute; (2) that they fear that they will lose parental rights based on violation of this statute; (3) that they fear that they will lose their housing based on violation of the statute; and (4) that they fear that they will lose their jobs based on violation of the statute.

In the affidavits which were filed in support of their motion for summary judgment, appellees alleged: (1) that they are harmed because the statute condemns homosexual sex without condemning heterosexual sex; (2) that they suffer a stigmatic harm because they know that by violating the statute they are engaging in criminal behavior; (3) that they suffer a heightened risk of additional discrimination if the statute is not declared unconstitutional because the statute is used as justification for other forms of discrimination; (4) that they fear prosecution because police officers are free to arrest appellees for violating the statute; (5) that they fear prosecution because in Texas the sodomy law is enforced; (6) that they fear arrest because some police officers are hostile towards gay people; and (7) that they fear prosecution because neither appellant nor the other members of his class have repudiated enforcement of the statute.

A review of appellees' allegations demonstrates that appellees have failed to establish a justiciable controversy. While appellees