Editorial: Striking Down the Sodomy Laws
New York Times,
November 25, 1998
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When Michael Hardwick looked up from the privacy of his apartment in Atlanta one day 16
years ago, he was stunned to see a policeman standing in the door. "What are you
doing in my bedroom?" he asked. It is a question that took on a special bitterness
for gay men and lesbians after the United States Supreme Court in 1986 upheld the Georgia
law against sodomy under which Mr. Hardwick was arrested that day. The law was 170 years
old. It prohibited oral and anal sex by anyone, homosexual or heterosexual, and like all
such laws in the United States it was modeled on old English law, which was shaped by
religious teachings.
In his argument to the Supreme Court, the Georgia Attorney General, Michael Bowers,
attacked homosexual sodomy as "anathema to the basic units of our society -- marriage
and the family." Five justices bought the argument, upholding the law in a decision
that removed any claim homosexuals had to privacy or to protection from government
intrusion in their bedrooms. To decide otherwise, Chief Justice Warren E. Burger said,
would "cast aside millennia of moral teaching."
But the critical constitutional question, Mr. Hardwick's lawyer later wrote, "was
not what Michael Hardwick was doing in his bedroom, but rather what the state of Georgia
was doing there." On Monday, ruling in another case, the Georgia Supreme Court agreed
and struck down the law. This case arose from heterosexual acts between a man and woman,
but the Court made clear that Georgia's Constitution guarantees rights of privacy that
make no distinction between homosexuals and heterosexuals. "We cannot think of any
other activity that reasonable persons would rank as more private and more deserving of
protection from governmental interference than consensual, private, adult sexual
activity," it said.
The Georgia decision follows one by a city circuit judge in Baltimore last month who
held that Maryland law could not discriminate by making sodomy illegal for homosexuals and
not for heterosexuals. In Rhode Island, the legislature voted to repeal its anti-sodomy
law earlier this year. One way or the other, in almost two-thirds of the states, outdated
legal restrictions on private sex have fallen away. The remaining holdouts should drop the
last traces of this assault on privacy.
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