Cite as 349 Ark. 600 (2002)
right to privacy as guaranteed by the Arkansas Constitution. The Arkansas Constitution, like the U.S. Constitution, does not contain an explicit guarantee of the right to privacy. The development of the federal right to privacy is instructive. In his dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928), overruled in part by Katz v. Ohio, 389 U.S. 347 (1967), Mr. Justice Brandeis characterized "the right to be let alone" as "the right most valued by civilized men." The Supreme Court has since recognized a penumbra of rights emanating from the First Amendment and protecting privacy from governmental intrusion. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (finding a fundamental right to marital privacy). 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. See Roe v. Wade, 410 U.S. 113 (1973). However, in Bowers v. Hardwick, 478 U.S. 186 (1986), the Court held that the U.S. Constitution provides no fundamental right to engage in homosexual sodomy, noting that the conduct has historically been condemned.[1] In Bowers, the Court reversed the Eleventh Circuit Court of Appeals, which had concluded that Georgia's sodomy statute violated the respondent's fundamental rights because his homosexual activity was a private and intimate association beyond the reach of state regulation. Id.
Though it is clear that no fundamental right to engage in homosexual sodomy is protected by the United States Constitution, the textual and structural differences between the Bill of Rights and our own Declaration of Rights mandate that we explore whether such a right exists under the Arkansas Constitu-
- ↑ The respondent in Bowers had been charged with violating the Georgia sodomy statute by committing sodomy with another adult male in the bedroom of his home. After a preliminary hearing, the prosecutor decided not to present the matter to the grand jury. 478 U.S. 186. The respondent then brought suit in the federal court challenging the constitutionality of the statute insofar as it criminalized sodomy performed in private and between consenting adults. Id. See Ga. Code Ann. § 16-6-2(a) (1984) ("[a] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another"). The sex or status of the persons who engage in the sexual act is irrelevant under the Georgia statute. 478 U.S. at 200 (Powell, J., concurring).
