Last edited: December 08, 2004

Georgia Supreme Court Throws Out Fornication Law

Ban on Sex Out of Wedlock Made Gay Sex Illegal

Southern Voice, January 17, 2003
1095 Zonolite Road, Atlanta, GA 30306

By Laura Douglas-Brown

A legal case involving two heterosexual teens caught in a sexual act by one of their mothers ended this week with the Georgia Supreme Court gutting a law that also made all gay sexual relationships illegal.

The high court ruled unanimously Monday that a 170-year-old law that banned all sex outside of marriage violates the right to privacy guaranteed by the state constitution.

"The Georgia Constitution protects from criminal sanction private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent," wrote Chief Justice Norman S. Fletcher on behalf of the court.

"Georgia’s seldom and selectively enforced fornication law, that once landed citizens on the chain gang, is essentially a dead letter," said Gerry Weber, legal director for the ACLU of Georgia, which brought the case.

The court based this week’s ruling on its 1998 decision in Powell v. State, when, in a huge victory for gay rights advocates, the justices threw out Georgia’s sodomy law.

While the fornication law did not have the same symbolic value to many gays as the sodomy law, it also held the potential for unfair enforcement, according to Beth Littrell, a staff attorney with the Georgia ACLU and co-counsel on the case.

"I think this law has a large impact on the gay and lesbian community, because they cannot rid themselves of the criminality if they are ever to engage in sexual intimacy," said Littrell, who is gay.

"Whereas heterosexual people have the option of marrying [to keep from breaking the fornication law], homosexual couples are banned from doing that," she said.

The ACLU challenged the constitutionality of the fornication law on behalf of J.M., identified only by his initials in court records. He was convicted of fornication March 15 in Fayette County Juvenile Court. The young man and his girlfriend, both 16 at the time, were found by the girl’s mother engaging in sex in the girl’s bedroom, after the young man sneaked in, according to court documents.

The age of the couple raised concerns for the Southeastern Legal Foundation, a conservative legal group based in Atlanta.

"Yesterday’s decision from the Georgia Supreme Court regarding the state’s so-called ‘fornication’ law raises the specter that we may be witnessing an erosion of legal protections for young people," Phil Kent, president of the foundation, said Tuesday.

"As a result, early indications suggest that the permissive liberal lobby may attempt to lower the age of consent in Georgia below the current 16 years of age," Kent said, noting that his group would fight any such efforts.

But Littrell said she is not aware of any attempt to lower Georgia’s age of consent.

"The legislature, in its wisdom, decides the age of consent, and that is absolutely not an ACLU concern," she said.

The Fayette County district attorney’s office also focused on the couple’s young age in its brief defending the fornication statute, noting that both were still minors under Georgia law.

When the state Supreme Court struck down the sodomy law, Fayette Assistant District Attorney Jamie Inagawa noted, the justices focused on the right to privacy in sexual acts "committed by adults."

But while the two young people were under the age of 18, they both were already 16, the age of consent for sexual intercourse in Georgia, the ACLU countered.

The Supreme Court agreed with the ACLU in its decision, noting that the teens "were legally capable of consenting, and they willingly engaged in sexual intercourse."

The court also disagreed with Inagawa’s assertion that the young man did not have a right to privacy because he had sneaked into the girl’s room, with her invitation but not her family.

By closing the door and blocking it with a stool, the teens "intended to keep their sexual activity private and took reasonable steps to ensure their privacy," the court ruled.

In 1998, the state Attorney General’s office helped defend the sodomy statute. But the state chose not to get involved in the fornication case, leaving it to Fayette County to defend the law.

"I think it is fair to say that this signals that Georgia lawmakers who attempt to legislate morality are going to have a heavier burden," Littrell said. "That is good for gays and lesbians and all Georgians."

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