# Jegley v. Picado

In Jegley v. Picado, 349 Ark. 600 (2002), the Arkansas Supreme Court struck down a same-sex sodomy law because the law violated the state constitutional rights to privacy and to equal treatment. Brown, J., wrote a concurring opinion and Thornton, J., wrote a dissenting opinion.
Supreme Court of Arkansas
349 Ark. 600
Larry JEGLEY, In His Official Capacity, and On Behalf of Himself and All Others Similarly Situated v. Elena PICADO, et al.
Appeal from Pulaski Circuit Court
No. 01-815. --- Delivered: July 5, 2002.
* Court Documents
* Opinion of the Court
* Concurring Opinion Brown
* Dissenting Opinion Thornton
* JUDGMENT—SUMMARY JUDGMENT—WHEN GRANTED.—Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law.
* JUDGMENT—SUMMARY JUDGMENT—STANDARD OF REVIEW.—On review, the appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered.
* JUDGMENT—SUMMARY JUDGMENT—BURDEN ON MOVING PARTY.—The burden of sustaining the motion for summary judgment is always on the moving party; the appellate court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party.
* JUDGMENT—SUMMARY JUDGMENT—WHEN PROPER.—Summary judgment is proper when the party opposing the motion fails to show that there is a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
* JUDGMENT—SUMMARY JUDGMENT—APPELLATE FOCUS ON AFFIDAVITS & OTHER DOCUMENTS.—Appellate review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties.
* APPEAL & ERROR—JUSTICIABLE ISSUE—QUESTION OF ABSENCE REVIEWED DE NOVO.—On appeal, the question as to whether there was a complete absence of a justiciable issue shall be reviewed de novo on the record of the trial court.
* EQUITY—JURISDICTION—EXISTS ONLY WHEN REMEDY AT LAW IS INADEQUATE.—As a general rule, equity jurisdiction exists only when the remedy at law is inadequate; more particularly, equity will not entertain a contest over the validity of a statute nor ​restrain prosecutions pending the determination of the validity thereof where an adequate remedy at law exists.
* APPEAL & ERROR—RIGHT RESULT BUT WRONG REASON—SUPREME COURT WILL AFFIRM.—The supreme court will affirm the trial court if it reached the right result, even though the court may have announced the wrong reason.
* ACTION—DECLARATORY RELIEF—REQUIREMENTS.—Declaratory relief will lie where (1) there is a justiciable controversy; (2) it exists between parties with adverse interests; (3) those seeking relief have a legal interest in the controversy; and (4) the issues involved are ripe for decision.
* ACTION—DECLARATORY JUDGMENT—LITIGATION MUST BE PENDING OR THREATENED.—The courts do not construe acts similar to Act 274 of 1953, the Declaratory Judgment Act, to require actual litigation as a prerequisite to asking for a declaratory judgment, but they do state, as a general rule, that litigation must be pending or threatened; whether relief under the Act should be granted is a matter resting in sound judicial discretion; such relief ought not ordinarily be granted where another adequate remedy is at hand.
* ACTION—DECLARATORY JUDGMENT—WHEN STATUTE IS APPLICABLE.—The declaratory-judgment statute is applicable only where there is a present actual controversy, and all interested persons are made parties, and only where justiciable issues are presented; it does not undertake to decide the legal effect of laws upon a state of facts which is future, contingent or uncertain; a declaratory judgment will not be granted unless the danger or dilemma of the plaintiff is present, not contingent on the happening of hypothetical future events; the prejudice to his position must be actual and genuine and not merely possible, speculative, contingent, or remote.
* CONSTITUTIONAL LAW—CHALLENGE TO STATUTE—SUPREME COURT HAS NOT ALWAYS REQUIRED PROSECUTION AS PREREQUISITE FOR.—Although the supreme court clearly requires the existence of a justiciable controversy prior to granting a declaratory judgment, it has heard challenges to the constitutionality of statutes and regulations by persons who did not allege that they had been penalized under the statutes or regulations; the supreme court has not always required prosecution or a specific threat of prosecution as a prerequisite for challenging a statute.
* CONSTITUTIONAL LAW—CHALLENGE TO STATUTE—APPELLEES WERE NOT WITHOUT REASON TO FEAR PROSECUTION FOR ​VIOLATION OF SODOMY STATUTE.—Where the Arkansas sodomy statute, Ark. Code Ann. § 5-14-122 (Repl. 1997), was clearly not moribund, and the State had not foresworn enforcement of it; where appellees were precisely the individuals against whom section § 5-14-122 was intended to operate; where appellees admitted to presently engaging in behavior that violated the statute and their intent to engage in future behavior that would violate the law; and where the State had not disavowed any intention of invoking the criminal-penalty provisions of Ark. Code Ann. § 5-14-122, the supreme court could not say that appellees were without some reason to fear prosecution for violation of the sodomy statute; the discretionary acts of the State's prosecutors could effectively bar shut the courthouse doors and protect the sodomy statute from constitutional challenge.
* CONSTITUTIONAL LAW—CHALLENGE TO STATUTE—PRESUMPTION OF CONSTITUTIONALITY.—In considering the constitutionality of a statute, the supreme court recognizes the existence of a strong presumption that every statute is constitutional; the burden of rebutting a statute's constitutionality is on the party challenging the legislation.
* CONSTITUTIONAL LAW—CHALLENGE TO STATUTE—WHEN ACT SHOULD BE STRUCK DOWN.—An act should be struck down only when there is a clear incompatibility between the act and the constitution; it is the duty of the courts to sustain a statute unless it appears to be clearly outside the scope of reasonable and legitimate regulation.
* CONSTITUTIONAL LAW—CHALLENGE TO STATUTES—WHEN FACIAL INVALIDATION IS APPROPRIATE.—It is the "overbreadth" doctrine alone that is not recognized outside the context of the First Amendment; with regard to facial challenges in general, the supreme court has said that facial invalidation of a statute is appropriate if it can be shown that under no circumstances can the statute be constitutionally applied.
* CONSTITUTIONAL LAW—CHALLENGE TO STATUTE—SODOMY STATUTE WAS NOT FACIALLY UNCONSTITUTIONAL.—Appellees did not show Ark. Code Ann. § 5-14-122 to be facially invalid; there was no allegation that the statute's prohibition of conduct involving animals is unconstitutional; absent a showing that the sodomy statute could never be constitutionally applied, the supreme court could not find the statute facially unconstitutional.
* CONSTITUTIONAL LAW—RIGHT TO PRIVACY—NO EXPLICIT GUARANTEE.—The Arkansas Constitution, like the United States ​Constitution, does not contain an explicit guarantee of the right to privacy; the Supreme Court has recognized a penumbra of rights emanating from the First Amendment and protecting privacy from governmental intrusion; the Court has also held that there is a right to privacy founded in both the Fourteenth Amendment's concept of personal liberty and in the penumbras of the Bill of Rights; the United States Supreme Court has held that the United States Constitution provides no fundamental right to engage in homosexual sodomy.
* CONSTITUTIONAL LAW—ARKANSAS CONSTITUTION—RIGHTS ENUMERATED MUST NOT BE CONSTRUED SO AS TO DENY OR DISPARAGE OTHER RIGHTS.—Although no right to privacy is specifically enumerated in the Arkansas Constitution, the rights enumerated in the constitution must not be construed in such a way as to deny or disparage other rights retained by the people [Ark. Const. art. 2, § 29].
* CONSTITUTIONAL LAW—ARKANSAS CONSTITUTION—INHERENT & INALIENABLE RIGHTS.—Article 2, Section 2, of the Arkansas Constitution guarantees the citizens of the state certain inherent and inalienable rights, including the enjoyment of life and liberty and the pursuit of happiness; Sections 8 and 21 of Article 2 also ensure that no Arkansan will be deprived of life, liberty, or property without due process of law.
* CONSTITUTIONAL LAW—ARKANSAS CONSTITUTION—RIGHT OF PERSONS TO BE SECURE IN PRIVACY OF THEIR OWN HOMES.—The Arkansas Constitution recognizes the right of persons to be secure in the privacy of their own homes; the supreme court has recognized a constitutional right of individuals to be free from unreasonable intrusions into their homes.
* CONSTITUTIONAL LAW—ARKANSAS CONSTITUTION—RIGHTS GUARANTEED TO ALL CITIZENS EQUALLY.—The rights granted by the Arkansas Constitution are guaranteed to all citizens equally [Ark. Const. art. 2, § 3].
* CONSTITUTIONAL LAW—RIGHT TO PRIVACY—FREQUENT STATUTORY REFERENCE INDICATES PUBLIC POLICY OF GENERAL ASSEMBLY.—Privacy is mentioned in more than eighty statutes enacted by the Arkansas General Assembly; this frequent reference to the right to privacy indicates a public policy of the General Assembly supporting a right to privacy.
* CONSTITUTIONAL LAW—RIGHT TO PRIVACY—RECOGNIZED IN ARKANSAS RULES OF CRIMINAL PROCEDURE.—A right to privacy is recognized in the Arkansas Rules of Criminal Procedure. ​
* CONSTITUTIONAL LAW—RIGHT TO PRIVACY—ARKANSAS SUPREME COURT HAS RECOGNIZED PROTECTION OF INDIVIDUAL RIGHTS GREATER THAN FEDERAL FLOOR.—The supreme court has recognized protection of individual rights greater than the federal floor in a number of cases.
* TORTS—INVASION OF PRIVACY—FOUR ACTIONABLE FORMS.—In the area of civil law, the supreme court has been in the forefront in recognizing the existence of four actionable forms of the tort of invasion of privacy: (1) appropriation; (2) intrusion; (3) public disclosure of private facts; and (4) false light in the public eye.
* CONSTITUTIONAL LAW—RIGHT TO PRIVACY—IMPLICIT IN ARKANSAS CONSTITUTION.—Considering the Arkansas Constitution together with the statutes, rules, and case law, it is clear that Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution; moreover, the supreme court has recognized due process as a living principle.
* CONSTITUTIONAL LAW—RIGHT TO PRIVACY—PROTECTS ALL PRIVATE, CONSENSUAL, NONCOMMERCIAL ACTS OF SEXUAL INTIMACY BETWEEN ADULTS.—The supreme court held that the fundamental right to privacy implicit in Arkansas law protects all private, consensual, noncommercial acts of sexual intimacy between adults.
* CONSTITUTIONAL LAW—RIGHT TO PRIVACY—INFRINGED UPON BY ARK. CODE ANN. § 5-14-122.—Because Ark. Code Ann. § 5-14-122 burdens certain sexual conduct between members of the same sex, we find that it infringes upon the fundamental right to privacy guaranteed to the citizens of Arkansas.
* CONSTITUTIONAL LAW—STATUTORY INFRINGEMENT UPON FUNDAMENTAL RIGHT—COMPELLING STATE INTEREST REQUIRED.—When a statute infringes upon a fundamental right, it cannot survive unless a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out the state interest.
* CONSTITUTIONAL LAW—NO COMPELLING STATE INTEREST OFFERED TO JUSTIFY SODOMY STATUTE—ARK. CODE ANN. § 5-14-122 DECLARED UNCONSTITUTIONAL AS APPLIED TO PRIVATE, CONSENSUAL, NONCOMMERCIAL, SAME-SEX SODOMY.—Where, according to the circuit court's order in the case, appellant conceded that the State could offer no compelling state interest sufficient to justify the sodomy statute, the supreme court declared unconstitutional Arkansas's sodomy statute at Ark. Code Ann. § ​5-14-122 as applied to private, consensual, noncommercial, same-sex sodomy.
* CONSTITUTIONAL LAW—EQUAL PROTECTION—PURPOSE.—The guarantee of equal protection serves to protect minorities from discriminatory treatment at the hands of the majority; its purpose is not to protect traditional values and practices, but to call into question such values and practices when they operate to burden disadvantaged minorities.
* CONSTITUTIONAL LAW—EQUAL PROTECTION—INTERMEDIATE LEVEL OF SCRUTINY.—A statute violates the federal Equal Protection Clause on the basis of sex where it provides dissimilar treatment for men and women who are similarly situated; for classifications based upon gender, an intermediate level of scrutiny is in order; to withstand an intermediate level of scrutiny, classifications by gender must serve important governmental objectives and be substantially related to achievement of those objectives.
* CONSTITUTIONAL LAW—EQUAL PROTECTION—RATIONAL-BASIS TEST.—Although homosexual citizens do not constitute a protected class, they are a separate and identifiable class for purposes of equal-protection analysis; under equal-protection analysis, any legislation that distinguishes between two groups of people must be rationally related to a legitimate governmental purpose; the rational-basis test provides that the party challenging a statute's constitutionality has the burden of proving that the act lacks a rational relationship to a legitimate objective of the legislature under any reasonably conceivable set of facts; it is not the supreme court's role to discover the actual basis for the legislation; the supreme court merely considers whether there is any rational basis that demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of arbitrary and capricious government purposes; if the supreme court determines that any rational basis exists, the statute will withstand constitutional challenge.
* CONSTITUTIONAL LAW—EQUAL PROTECTION—LIMITATIONS ON POLICE POWER.—The police power is very broad and comprehensive and embraces maintenance of good order, quiet of the community, and the preservation of public morals; the legislature may, within constitutional limitations, prohibit all things hurtful to the comfort, safety, and welfare of the people; however; to justify the State in interposing its authority in behalf of the public, it must appear, first, that the interests of the public require such interference and, second, that the means are reasonably necessary for the ​accomplishment of the purpose, and not unduly oppressive upon individuals; the police power can only be exercised to suppress, restrain, or regulate the liberty of individual action, when such action is injurious to the public welfare.
* CONSTITUTIONAL LAW—EQUAL PROTECTION—BARE DESIRE TO HARM POLITICALLY UNPOPULAR GROUP CANNOT CONSTITUTE LEGITIMATE GOVERNMENTAL INTEREST.—If the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest; government cannot avoid the strictures of equal protection simply by deferring to the wishes or objections of some fraction of the body politic.
* CONSTITUTIONAL LAW—EQUAL PROTECTION—POLICE POWER MAY NOT BE USED TO ENFORCE MAJORITY MORALITY ON PERSONS WHOSE CONDUCT DOES NOT HARM OTHERS.—The supreme court concluded that the police power may not be used to enforce a majority morality on persons whose conduct does not harm others; the Arkansas Equal Rights Amendment serves to protect minorities at the hands of majorities; the State has a clear and proper role to protect the public from offensive displays of sexual behavior, to protect people from forcible sexual contact, and to protect minors from sexual abuse by adults; however, criminal statutes, including those proscribing indecent exposure, rape, statutory rape, and the like, are in existence to protect the public from precisely such harms.
* CONSTITUTIONAL LAW—EQUAL PROTECTION—APPELLANT FAILED TO OFFER SUFFICIENT REASONING TO SHOW THAT PUBLIC MORALITY JUSTIFIED PROHIBITION OF SAME-SEX SODOMY.—Appellant failed to offer sufficient reasoning to show that notions of a public morality justify the prohibition of consensual, private intimate behavior between persons of the same sex in the name of the public interest; there was no contention that same-sex sodomy implicates the public health or welfare, the efficient administration of government, the economy, the citizenry, or the promotion of the family unit; legislation must bear a real or substantial relationship to the protection of public health, safety and welfare, in order that personal rights and property rights not be subjected to arbitrary or oppressive, rather than reasonable, invasion; the supreme court could attribute no legislative purpose to the sodomy statute except to single out homosexuals for different treatment for ​indulging their sexual preference by engaging in the same activity heterosexuals are at liberty to perform.
* CONSTITUTIONAL LAW—EQUAL PROTECTION—SODOMY STATUTE UNCONSTITUTIONAL AS VIOLATIVE OF ARKANSAS'S EQUAL RIGHTS AMENDMENT.—The General Assembly cannot act, under the cloak of police power or public morality, arbitrarily to invade personal liberties of the individual citizen; Ark. Code Ann. § 5-14-122 invaded such liberties, arbitrarily condemning conduct between same-sex actors while permitting the exact same conduct among opposite-sex actors; appellant failed to demonstrate how such a distinction served a legitimate public interest; absent some rational basis for this disparate treatment under the law, the supreme court held that Ark. Code Ann. § 5-14-122 was unconstitutional as violative of Arkansas's Equal Rights Amendment.
Appeal from Pulaski Circuit Court; David B. Bogard, Judge; affirmed.
Mark Pryor, Att'y Gen., by: Jill Jones Moore, Ass't Att'y Gen., for appellant.
Mitchell, Blackstock, Barnes, Wagoner & Ivers, by: David L. Ivers and Emily Sneddon; and Lambda Legal Defense & Education Fund, Inc., by: Susan L. Sommer, Ruth E. Harlow, and Jennifer Middleton, for appellees.
Kaplan, Brewer & Maxey, P.A., by: Philip E. Kaplan; and Professor John M.A. DiPippa (Associate's License, Commonwealth of Virginia), for amici curiae National Conference for Community Justice, the Right Reverend Larry E. Maze, Rabbi Eugene Levy, the Reverend Jo Ellen Willis, the Reverend Donna Rountree, More Light Presbyterians of Central Arkansas, and University of Arkansas Law Professors Donald Judges, Cynthia E. Nance, Richard B. Atkinson, and Morton Gitelman.
Nathalie F.P. Gilfoyle and James L. McHugh, for amicus curiae American Psychological Association.
Carolyn I. Polowy, for amicus curiae National Association of Social Workers, Inc.
Ronald L. May and Jenner & Block, LLC, by: William M. Hohengarten and Nicole G. Berner, for amici curiae American ​Psychological Association, Arkansas Psychological Association, National Association of Social Workers, and the Arkansas Chapter of the National Association of Social Workers.
[Opinion of the court by Justice ANNABELLE CLINTON IMBER. Concurring opinion by Justice ROBERT L. BROWN, joined by Justice JIM HANNAH. Dissenting opinion by Justice RAY THORNTON, joined by Chief Justice W. H. "DUB" ARNOLD.]
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