Page:Jegley v. Picado, 349 Ark. 600 (2002).pdf/3

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LATION 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. CONSTITUTIONAL LAW—RIGHT TO PRIVACY—NO EXPLICIT GUARANTEE.—The Arkansas Constitution, like the United States