Jegley v. Picado

Larry Jegley v. Elena Picado, et al. was a 2002 decision by the Arkansas Supreme Court that struck down Arkansas’s sodomy law, which criminalized homosexual behavior. It was the first time that the Supreme Court removed a legal prohibition against homosexual relationships, and the decision was cited many times the next dozen years by state and federal courts in several states that invalidated such laws.

Sodomy laws preceded American independence. The colonies criminalized homosexual acts, which were often death-penalty offenses. Sodomy was a felony in every state until 1962, when states began to liberalize the laws. In 1975, Arkansas attorney general Jim Guy Tucker submitted a lengthy bill to the Arkansas General Assembly that overhauled and recodified the state’s criminal laws. The bill omitted so-called “status offenses,” which made the “undesirable” status of a person (rather than a specific act) a criminal offense. The legislature approved the bill, and Governor David Pryor signed it, but groups began to criticize legislators for, in effect, legalizing homosexuality. When the legislature convened in 1977, legislators wanted to undo their 1975 votes and criminalize homosexuality. A bill to do that passed on the last day of the session, and Pryor signed it. Under the statute, conviction carried a $1,000 fine and up to a year in prison.

In 1991, a new state senator from Little Rock (Pulaski County), Vic Snyder, introduced a bill to repeal the statute, but he could not get enough support to get it out of committee. He introduced it in every session of the Arkansas General Assembly during the time he was a member, with the same result. He was elected to the U.S. House of Representatives in 1996.

The next year, Elena Picado and six other women and men filed a lawsuit in Pulaski County Circuit Court challenging the statute. They said that they had engaged in homosexual acts and that, although they had not been arrested, the criminal statute harmed them by posing a perpetual threat of arrest for conduct harming no one else. They named the prosecuting attorney for Pulaski County, Larry Jegley, and the state attorney general, Mark Pryor, as defendants, because by law they were supposed to prosecute people under the statute and defend the convictions and the statute. Numerous groups, including the American Psychological Association and the National Association of Social Workers, intervened as friends of the court on behalf of the seven plaintiffs.

On March 23, 2001, Circuit Judge David Bogard ruled that the statute violated state and federal constitutional protections. By that time, only four other states—Kansas, Missouri, Oklahoma, and Texas—still specifically outlawed same-sex acts.

The ruling was appealed, and the case went to the Arkansas Supreme Court. The Supreme Court, on July 5, 2002, was divided 5–2 in upholding Judge Bogard’s decision and striking down the sodomy statute. The two dissenting justices—Chief Justice William H. “Dub” Arnold and Justice Ray H. Thornton Jr.—said that, since no one was being prosecuted under the statute, there was no justiciable issue, and therefore the courts should not have tried the lawsuit. Until someone was prosecuted and convicted under the law, Arnold and Thornton said, it could not properly be challenged.

In Larry Jegley v. Elena Picado, et al., the five justices centered their case on the Arkansas Constitution’s guarantees of privacy and equal protection rather than those in the U.S. Constitution, because the U.S. Supreme Court had found in 1986 (Bowers v. Hardwick) that state laws making homosexuality a crime did not violate those guarantees in the federal Constitution. Justice Annabelle Imber wrote the 2002 majority opinion striking down the statute; her opinion was widely praised for its clarity and thoroughness. Owing to the U.S. Supreme Court precedent in Bowers v. Hardwick, Imber could not invoke the due-process, equal-protection, and privacy guarantees in the Bill of Rights and the Fourteenth Amendment, so she turned to the Arkansas Constitution’s Declaration of Rights and the state’s long legal history of recognizing privacy as a fundamental right, both in statutes and court rulings, although privacy was not specifically mentioned in the constitution.

“It is clear to this court,” Imber wrote, “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.” She wrote that the police power of the state could not be used “to enforce a majority morality on persons whose conduct does not harm others.” Justice Robert L. Brown also wrote a strongly worded opinion concurring in the result.

The U.S. Supreme Court would reverse its Bowers v. Hardwick decision in 2003 in Lawrence v. Texas and hold that state laws making homosexuality a crime were, in fact, a violation of the U.S. Constitution. The majority in Lawrence v. Texas cited the Arkansas decision and similar decisions by courts in four other states. The Jegley v. Picado precedent was also cited in two later Arkansas court decisions: the Supreme Court’s unanimous decision in 2011 to strike down a 2008 initiated act that made it unlawful for same-sex couples to adopt children or serve as foster parents, and the 2014 order by Pulaski County circuit judge Chris Piazza’s voiding an Arkansas constitutional amendment, ratified in 2004, that prohibited marriages and civil unions of same-sex couples or recognition of legal unions that occurred in other states.

For additional information:
Clinton, Bill. My Life. New York: Alfred A. Knopf, 2004.

Eskridge, William N. Dishonorable Passions: Sodomy Laws in America, 1861–2003. New York: Viking Press, 2008.

Larry Jegley v. Elena Picado, et al., Supreme Court of Arkansas, July 5, 2002. 80 S.W.3d 332.

Ernest Dumas
Little Rock, Arkansas