Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/9

608 Association, Arkansas Psychological Association, National Association of Social Workers, and the Arkansas Chapter of the National Association of Social Workers.

 C I, Justice. This appeal involves a constitutional challenge to the Arkansas sodomy statute at Ark. Code Ann. § 5-14-122 (Repl. 1997). Appellant Larry Jegley, acting in his official capacity as prosecuting attorney for the Sixth Judicial District, on behalf of himself and all others similarly situated, was sued by appellee Elena Picado and six other gay and lesbian Arkansas citizens. Appellees seek a declaratory judgment that this state's sodomy statute is unconstitutional and an injunction against future enforcement of the statute. They assert that the statute violates their fundamental right to privacy and their equal protection rights under both federal and state constitutional law. We agree with appellees and hold that Ark. Code Ann. § 5-14-122 is unconstitutional under the Arkansas Constitution.

The statute at issue specifically provides:

(a) A person commits sodomy if such person performs any act of sexual gratification involving:

(1) The penetration, however slight, of the anus or mouth of an animal or a person by the penis of a person 'of the same sex or an animal; or

(2) The penetration, however slight, of the vagina or anus of an animal or a person by any body member of a person of the same sex or an animal.

(b) Sodomy is a Class A misdemeanor.

Ark. Code Ann. § 5-14-122. The criminal penalty range for a conviction under the statute is a sentence not to exceed one year in jail and a fine of up to $1,000. See Ark. Code Ann. §§ 5-4-201 and 5-4-401 (Repl. 1997).

Appellees Elena Picado, Randy McCain, Robin White, Bryan Manire, Vernon Stokay, Charlotte Downey and George Townsand filed a declaratory judgment action seeking to have Ark. Code Ann. § 5-14-122 declared unconstitutional insofar as it