Jegley v Picado, et al. Vignette

Jegley v. Picado, et al.

A Reflective Images vignette

Introduction

“The state has not offered sufficient reasoning to show that notions of public morality justify the prohibition of consensual and private intimate behavior between persons of the same sex in the name of public interest.” With these words, the Arkansas Supreme Court struck down the state sodomy law. Jegley v. Picado (2002) was significant not only for decriminalizing same-sex physical relationships but also highlights important aspects of LGBTQ+ activism in Arkansas.

In 1977, the Arkansas General Assembly passed a bill to criminalize homosexual acts. The new law strengthened a previous statute that was omitted in the recodification process in 1975.  Arkansas Code 5-14-122 made sex between members of the same sex a Class A misdemeanor punishable by one year in jail and a $1,000 fine.

By the mid-1990s, several LGBTQ+ Arkansans contested the law. Fighting it in the courts meant gathering legal support from out-of-state organizations. In 1998, Lambda Legal, the largest national legal organization dedicated to fighting for LGBTQ+ civil rights, agreed to represent Elena Picado and six other same-sex citizens. They filed suit against the state of Arkansas arguing that Code 5-14-122 infringed on their right to privacy which violated not only the U.S. Constitution but Article 2 of the Arkansas Constitution.

In 2001, the case finally made its way to the Pulaski County Circuit Court. Larry Jegley, acting in his official capacity as the Pulaski County Prosecuting Attorney, was the defendant. Assistant Attorney General Timothy Gauger represented the state. Gauger argued that the state has the right to enact laws based on majority of its citizens’ “moral disapproval.” For the constitutionality concerns, Gauger argued that the implicit rights to individual privacy in the U.S. and Arkansas Constitution did not apply to a state’s regulation of sodomy and other homosexual acts.

Lambda Legal and the seven plaintiffs focused on the law’s discrimination of same-sex couples specifically. Susan Sommer, a lawyer for Lambda Legal told the judge “These are fine contributing members of their communities. They are your co-workers, neighbors, and your brothers and sisters and they are treated unfairly in this state.” One of the plaintiffs, Robin White drove this point home: “I do not deserve to be called a criminal by my state just because of who I am.”

Circuit Judge David B. Bogard ruled Code 5-14-122 was unconstitutional because it violated Article 2, Section 18 of the Arkansas Constitution by criminalizing conduct “solely on the basis of the sex of the participants.” Bogard made clear that this was a determination about privacy and equal protection not morality: “This circuit’s role is to see that the liberty of our citizens is fully protected by our constitution and laws.”

Though the law was declared unconstitutional, the fight was not over. The state Attorney General’s office appealed to the Arkansas Supreme Court stating that a ruling from the highest court in the state would “clarify Arkansas law pertaining to the state’s sodomy statute.” The state’s argument concerning the constitutionality of the law remained the same. They argued that whatever implicit right to privacy may exist in the Arkansas Constitution, it did not apply to a state’s regulation of sodomy. The state also added there was no justifiable controversy since the plaintiffs could not provide evidence of a “credible threat of imminent prosecution.” The law had remained largely unenforced and the state argued there was no justiciable issue. Several outside organizations filed amicus curiae, friend of the court, briefs for the LGBTQ+ cause. Most significantly, the American Psychological Association, issued 25-page brief highlighting important considerations of how these laws target and further stigmatize LGBTQ+ individuals and the consequences this has on their relationships and mental health. The APA brief stated: “scientific research demonstrates that homosexual orientation is not experienced as a voluntary choice…” and argued that laws like the one in question “impinge on fundamental intimate relationships.”

On July 5, 2002, the Arkansas Supreme Court voted 5-2 to affirm Bogard’s ruling that the law is unconstitutional. In what was now Jegley v. Picado, the court centered its ruling on the strong implicit right to privacy in the Arkansas Constitution. Writing for the majority, Justice Annabelle Imber wrote that not only does the right to individual privacy exist in the Arkansas Constitution but that state legal precedent had firmly established it as a stronger right than the right to privacy in the U.S. Constitution. She specifically cited cases involving privacy and personal freedom inside the home. The discriminatory nature of the law in applying only to same-sex couples and not heterosexual couples was also addressed: “the issue here is not whether sexual activity traditional considered immoral can be punished by society but whether it can be punished solely on the basis of sexual preference.” According to this Court, the answer was no.

After five years being tied up in courts, Jegley v. Picado was the final determination regarding Arkansas’s sodomy law. One year later, the case was cited in Lawrence v. Texas, the U.S. Supreme Court case that declared that all state sodomy laws were unconstitutional.  The case represents an important milestone in LGBTQ+ Arkansans’ fights for equal protections under the law and their own pursuits of happiness and humanity.

Sources

American Psychological Association, amicus curiae brief, October 29, 2001. Accessed here.

Arkansas Democrat-Gazette, January 30, 2001, B6.

Arkansas Democrat-Gazette, March 24, 2001, A1.

Arkansas Democrat-Gazette , April 21, 2001, B1.

Arkansas Democrat-Gazette, November 14, 2001, A10.

“Jegley v. Picado” Encyclopedia of Arkansas. Accessed here.

Jegley v. Picado, 80 S.W.3d 332 (Ark. 2002).

Lambda Legal website. Accessed here.