Georgia Repeals Sodomy Law
Notorious Law Meets Unceremonious End
Washington Blade,
December 4, 1998
By Lisa Keen
Just two and a half years after it followed the U.S. Supreme Court’s lead and
upheld Georgia’s infamous law against sodomy, the same seven-member Georgia Supreme
Court on Monday struck it down.
"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," wrote Chief Justice Robert Benham for the 6 to 1
majority.
Gay legal activists cannot think of any other sodomy law they less expected to be
defeated.
The Georgia sodomy law was, up until Nov. 23, one of those on the books in 20 states
(though in five states, the laws’ enforceability is in dispute). The law in Georgia
was also one among laws in eight states that were under active challenge this year, and
the third to suffer a serious hit. (Rhode Island’s law was repealed by the
legislature; Maryland’s was crippled when a judge ruled it unconstitutional and the
state indicated it would probably not appeal.)
"The Georgia statute was the flagship of sodomy laws," said Matt Coles, head
of the ACLU’s Lesbian and Gay Rights Project. The ACLU had led the landmark challenge
against Georgia’s law in 1986, when the U.S. Supreme Court rejected the "right
to privacy" argument in regards to the U.S. Constitution in the Bowers v. Hardwick
case. It led a challenge against the Georgia law again, in 1996, when the Georgia Supreme
Court rejected a "right to privacy" argument in regards to the state
constitution in the Christensen v. Georgia case. And last year, it tried to stop then
Attorney General Michael Bowers from using the law to justify firing Lesbian attorney
Robin Shahar from his staff, claiming he had a "reasonable" fear that a Gay
person on his staff might "interfere with" his enforcement of the state’s
sodomy laws.
"This statute more than any other is identified with using criminal laws to put
Gay people down," said Coles. "The symbolic value of that alone is
enormous."
"These sodomy statutes hurt us more than anybody else," said Beatrice Dohrn,
managing attorney of Lambda Legal Defense and Education Fund, which filed a brief in the
case. "It’s just incredibly delightful and important to get rid of these laws
… and this is the very one that is the source of all the trouble."
"It’s an incredibly powerful tool for future plaintiffs," said Shahar,
who is now an attorney for the city of Atlanta. "Employers might think twice now
before firing people, because they no longer have a sodomy law to hang their hats on. The
sodomy law was a primary weapon against us, and this decision takes that weapon right out
of their hands."
There was also an incredible surprise element to Monday’s decision.
Just two years ago, Chief Justice Benham and three of his five colleagues on the bench
had been part of the 5 to 2 majority which upheld the sodomy law. That case was brought by
a Gay man who was challenging the sodomy law after being arrested for soliciting for
sodomy at an interstate rest stop. In fact, he had simply agreed to follow another man to
a nearby motel to engage in oral sex. But the other man turned out to be an undercover
police officer. In upholding the law then, the Georgia Supreme Court ruled that, while the
state constitution did guarantee a right to privacy, the sodomy law served an important
need of the state to further "the moral welfare of the public."
Thus, it was quite a surprise on Nov. 23 when the same bench issued a 12-page ruling
that said, "While many believe that acts of sodomy, even those involving consenting
adults, are morally reprehensible, this repugnance alone does not create a compelling
justification for state regulation of the activity."
"It is without dispute that oftentimes the public policy so established and the
laws so enacted reflect the will of the majority of Georgians as well as the
majority’s notion of morality," wrote Benham. "However," he continued,
quoting from a decision last year by the Montana Supreme Court overturning that
state’s sodomy law, "it does not follow … that simply because the
legislature has enacted as law what may be a moral choice of the majority, the courts are,
thereafter, bound to simply acquiesce."
"In undertaking the judiciary’s constitutional duty," continued Benham,
"it is not the prerogative of members of the judiciary to base decisions on their
personal notions of morality."
In trying to understand how the court came to such a change of heart concerning the
sodomy law, some Gay legal activists have speculated that it might have something to do
with the facts of the two cases. The 1996 case involved a Gay man; the 1998 case involved
a heterosexual man. The 1996 case involved activity in a public area; the 1998 case took
part entirely in a private residence.
Specifically, the 1998 case, Powell v. Georgia, involved a defendant, Anthony Powell,
who had been charged with raping his wife’s 17-year-old niece. A jury decided that
there had not been enough evidence to conclude the sexual contact between Powell and the
teenager had been forcible; but, because Powell, in his own testimony, had acknowledged
performing oral sex on the girl, the jury convicted him of sodomy.
Georgia law prohibits sodomy — defined as "any sexual act involving the sex
organs of one person and the mouth or anus of another" — regardless of the
gender of the participants.
Powell appealed, using the same argument the Gay man had used in the 1996 case —
that the sodomy law violated his right to privacy under the state constitution. Both the
ACLU and the Lambda Legal Defense and Education Fund filed friend-of-the-court briefs in
the case to argue that the sodomy violated state constitutional right to privacy.
The judges could have ruled in a way that could have struck the law for heterosexuals
but retained it for homosexuals. Many courts have. So what appears to have changed the
judges’ minds this time was the fact that the Powell case did not involve an act in a
public. The majority decision spent considerable time discussing the state’s right to
privacy. In words that seemed to echo the U.S. Supreme Court’s decision to uphold the
law because laws proscribing sodomy have "ancient roots," the Georgia Supreme
Court emphasized that the right of privacy is derived from "ancient law" and has
"a long and distinguished history in Georgia." The court also patted itself on
the back as being the first supreme court to recognize the right to privacy (in a 1905
case, Pavesich v. New England Life Insurance, over the unauthorized use of a man’s
photograph in an advertisement).
"It is clear from the right of privacy [rulings since Pavesich]," wrote Chief
Justice Benham "that the ‘right to be let alone’ guaranteed by the Georgia
Constitution is far more extensive than the right of privacy protected by the U.S.
Constitution, which protects only those matters ‘deeply rooted in this Nation’s
history and tradition’ or which are ‘implicit in the concept of ordered
liberty.’"
The Georgia Supreme Court was not the first state supreme court to find that laws
prohibiting sodomy violate the right to privacy guaranteed by a state constitution. As it
noted in its own footnote, other state supreme court rulings have determined that their
state constitutions provide "its citizens with a broader right or privacy than that
provided by the federal constitution," including the Kentucky Supreme Court in 1992,
Tennessee’s in 1996, and Montana’s last year.
The court also ruled that laws can not infringe on privacy in Georgia unless the
government can identify some compelling need for the infringement. It rejected the
state’s argument that the sodomy law was needed to prevent sexual assaults and to
protect the public against various other sexual acts. Other laws, noted the court, could
address those needs. The majority noted, for instance, that the state still has on the
books laws to prohibit such things as child molestation, prostitution, bestiality, and
solicitation of sodomy.
Challenges are still under way in Arkansas, Kansas, Louisiana, Texas, and Puerto Rico.
Reuters wire service reported that last Friday, Nov. 20, a Houston judge ordered two men
arrested for engaging in sodomy in the privacy of their home to pay a fine of $125 each
for violating the law. Reuters said the two men, 55-year-old John Lawrence and 31-year-old
Tyrone Garner, pleaded no contest but plan to appeal the order.
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