The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
"[N]o satisfactory reason occurs to us why the
lesser form of this crime against nature should be covered by our statute,
and the greater excluded, when both are committed in a like unnatural
manner, and when either might well be spoken of and understood as being
the abominable crime not fit to be named among Christians."
The Colonial Period, 1607-1776
Georgia, the last of the 13 British colonies to be settled, originally was
founded as a penal colony. The original charter granted to the colony in 17321
provided that laws could be made locally,2 that
existing laws of the South Carolina colony (from which Georgia was erected)
were not continued in force in Georgia,3 and
that laws enacted by Georgia could not be repugnant to the laws of England.4
The South Carolina laws not received by Georgia included its sodomy law
and common-law reception statute (q.v.). Thus, at the founding, no
provision concerned sodomy.
Despite this fact, two known criminal prosecutions were carried out in
colonial Georgia for sodomy. The first occurred in 1734. An unnamed man
received 300 lashes underneath a gallows.5 This
penalty was inflicted in the theocratic settlement of Ebenezer populated by
German immigrants. The spiritual head of the colony later was made secular
head as well, and a conflict arose over his mixing church and state.6
This prosecution was not under English law and must be considered an
In 1743, an unnamed Irish "surgeon and apothecary" received the
death penalty for sodomy in Fort Frederica, Georgia.7
The official secretary of the colony made a reference to "English
laws" presumably being in force during this time,8
but the fact that the death sentence apparently was carried out under military
law casts some doubt as to which law was used to justify it.
In 1752, the proprietary rulers of Georgia surrendered power to the English
Crown.9 Even with this surrender, a local
legislature remained that continued to enact laws.10
This change of government apparently created a controversy as to what laws
were in force, Georgian or English.
This question was answered with a law passed in 175511
making it a crime for any person to deny that the statutory law of Georgia
still was in effect. This new law made no mention of English laws being
Period Summary: Georgia, ironically founded as a penal colony,
was the only of the 13 English colonies in which sodomy was legal
throughout its colonial period. Not only was there no sodomy statute, but
the colony maintained a corrosive attitude toward the English common law
and English statutes. Very few were considered in force in Georgia, the
Henrican and Elizabethan "buggery" laws not among those few. It
appears that there was a hostility toward England in Georgia, leading it
to reject English law to the extreme of allowing sodomy to be practiced.
The two known prosecutions of sodomy fell outside the orb of civil law.
One occurred in a German religious settlement and the other was carried
out under military auspices.
The Post-Revolution Period, 1776-1873
After the revolution, Georgia enacted a law in 178412
that adopted all laws that existed in Georgia as of May 14, 177613
as well as
the common laws of England, and such of the statute laws as were
usually in force in the said province[.]14
This wording made it clear that only the laws already recognized by Georgia
in 1776 were to be continued. Since sodomy never had been a crime in the
state, sodomy would remain legal until the legislature acted. This point is
important, because at the time of the adoption of the U.S. Bill of Rights in
1791, Georgia was the only one of the 13 colonies without criminal penalties
for sodomy, either by statute or common law. Two centuries later in the Bowers
v. Hardwick case, Justice Byron White would make a major error by claiming
that, since sodomy was criminal in all 13 colonies, the right to engage in
sodomy was not a fundamental liberty. Further discussion of this point will be
with the detailed analysis of the Hardwick case.
As backup to this point, a survey was done of English laws that were
considered in force in Georgia and thus adopted by the statute of 1784.15
Compiler William Schley listed 119 English statutes that his exhaustive
research showed were recognized as in force in Georgia throughout its history.
The list did not include either the Henrican or Elizabethan buggery
statutes.16 Schley believed that the decision
of the colonial rulers to accept or reject certain English laws
was a matter of choice in the colonists to receive or reject so much
and such parts only as they thought proper; or they might have rejected
the whole, and adopted any other laws, provided they were not repugnant to
the English laws; for this was the only restriction contained in the
By a 1770 statute, the colonists were
entitled to the benefit of the English statutes as existed at the time
of their colonisation, [sic] and which they have by experience
respectively found to be applicable to their several local and other
Schley felt this statute was not determinate of what laws were in force,
because "they do not point out which of the statutes were considered
applicable, and therefore adopted."19 The
final decision as to what had been and had not been adopted was to "rest
on opinion and reason."20 Schley decided
the colonial assembly made the declaration in regard to the common law,
they never could have intended to adopt the whole body of the English
common law, but must have meant only such parts and principles as were
applicable to their situation, for it would have been absurd to think of
carrying into effect in a desert and uncultivated country, all the
complicated laws of a powerful, commercial, populous and refined empire.21
Therefore, when speaking of
the common law in force in Georgia, we mean only so much, and such
parts of the English common law as were adapted to the exigencies of a
colony established in a new country...formed on different principles, and
for purpose, essentially different from those which governed the parent.
The statute law was also, only partially adopted, being expressly
restricted by the resolution itself.22
Schleys analysis later was criticized by legal scholars, not because he
left out adopted English laws, but because he included too many. The
Georgia Supreme Court noted with approval that it was
manifest from the terms of our Act of revival, that it was by no means
considered that all the statutes of England, of a general nature,
were of force in Georgia, prior to the 14th of May, 1776. [Emphasis is the
In addition, if any doubt existed as to whether an English statute was in
force, the doubt had to be resolved in the negative.24
This sexual freedom lasted into the 19th century. A criminal code adopted
in 181625 included Georgias first sodomy
law, which provided a compulsory sentence of life imprisonment at labor.26
For some reason, this code never was enforced.
In 1817, a new code was adopted27 that used
the same penalty for sodomy.28 This code was
enforced, giving Georgia its first sodomy law in 85 years of existence.
A revised criminal code adopted in 183329
abrogated common-law crimes30 and adopted a
unique sodomy law defining the act as
carnal knowledge and connection against the order of nature by man with
man, or in the same unnatural manner with woman.31
The penalty of life imprisonment at labor remained.32
A new code adopted in 185033 gave a form for
indictment that described the crime as between two males only and always as an
assault.34 An attempt to commit sodomy also was
made a crime, set as an unspecified misdemeanor.35
Period Summary: Georgia continued to allow sodomy for some four
decades after the Revolutionary War. It remained the only "free"
state of the original colonies. English common-law crimes were abrogated
by the state far earlier than in most states, showing a continued
antipathy toward English law. The sodomy law longest in force in the
state, that adopted in 1833, was a little more specific than most others.
It outlawed "connection against the order of nature by man with man,
or in the same unnatural manner with woman." Thus, it excluded
activity between women, presumably because the mind set of the time could
not contemplate such a thing as a Lesbian.
The Victorian Morality Period, 1873-1948
In 1874, in the case of White v. State,36
the Georgia Supreme Court ruled unanimously that no common-law crimes existed
in the state.
The first reported sodomy case in the state was Hodges v. State,37
in 1894. In one of the shortest such opinions in U.S. legal history, the
conviction of a boy "under 14 years of age" for sodomy on another
was overturned with two words: "Judgment reversed."38
In the case of Herring v. State,39 in
1904, the Georgia Supreme Court decided that fellatio constituted a violation
of the sodomy law. After noting the conflict between some writers on the
subject and the sparse case law in the United States,40
the Court decided that, because state law did not expressly limit the scope of
the law,41 and "[a]fter much
reflection," if the
baser form of the abominable and disgusting crime against naturei.e.,
by the mouthhad prevailed in the days of the early common law, the
courts of England could well have held that that form of the offense was
included in the current definition of the crime of sodomy. And no
satisfactory reason occurs to us why the lesser form of this crime against
nature should be covered by our statute, and the greater excluded, when
both are committed in a like unnatural manner, and when either might well
be spoken of and understood as being "the abominable crime not fit to
be named among Christians."42
Although the wording of the Georgia law did not use "crime against
nature," this decision made Georgia the first state to have the act of
fellatio read into that term and criminalized without a change of the statute.
(The Illinois case of 1897 (q.v.) was based on a broader law).
Curiously, just a year later, in 1905, the Georgia Supreme Court made
history in another way. Deciding Pavesich v. New England Life Insurance
Company,43 the Court became the first in
the nation to find a constitutional right to privacy. Justice Andrew Cobb,
speaking for the unanimous Court, said that the right to privacy was grounded
in the natural law.44 The right to privacy was
"absolute," yet subject to regulation if the private act violated
"public law or policy."45 Thus, an
"absolute" constitutional right could be overturned by a statute
simply because the statute made the act in question one of public policy.
the right to live as one will, so long as that will does not interfere
with the rights of another or of the public.46
Cobb noted that it could be claimed
to establish a liberty of privacy would involve in numerous cases the
perplexing question to determine where this liberty ended, and the rights
of others and of the public began.
That problem would be solved by "the wisdom and integrity of the
judiciary."47 Thus, the judiciary would
stick its nose into your house to determine if what you were doing there was
entitled to privacy or prosecution.
In 1911, in White v. State,48 the
Georgia Supreme Court issued a 10-word opinion reaffirming its decision in Herring.49
In Jones v. State,50 from 1916, the
Court issued a third ruling with the same result. It also decided that both
participants in an act of fellatio were principals.51
Unable to avoid moralizing, the Court said that
[u]npleasant as it is to discuss a case of this disgusting character,
it is nevertheless necessary to some extent. It is not essential, however,
to recite or refer to the revolting evidence[.]52
In 1917, in Comer v. State,53 the
Georgia Court of Appeals divided 2-1 to uphold a conviction under the sodomy
law of a man for committing cunnilingus on a woman. The lengthy analysis of
the Court: "Judgment affirmed."54 In
dissent, Judge Bloodworth, cautioning against the "loathsomeness" of
the charge, was full of "regret" that he could not join the
majority.55 Bloodworth quoted from the statute
that the act with a woman had to be "in the same unnatural
manner" as with a man. [Emphasis his].56
Since men could not engage in cunnilingus with each other, the act between a
man and a woman could not be criminalized. Bloodworth called on the
legislature to remedy the situation by expressly criminalizing such conduct.57
Also in 1917, the same court gave a victory to a defendant in the case of Bennett
v. State.58 The Court ruled unanimously, in
another two-word decision, "Judgment reversed," that the placing of
Bennetts hand on another mans crotch and saying, "Lets go down
in the alley yonder" did not constitute an assault to commit sodomy.59
In 1931, the Court of Appeals handled the case of Mobley v. State.60
It upheld the conviction of a prisoner for committing sodomy on a
"boy" who also was in his cell but gives no clue as to whether the
act was consensual.61
In the 1938 case of Wharton v. State,62
the Court of Appeals decided, unanimously, that frottage did not violate the
Another victory came just a few months later, early in 1939. In Thompson
v. Aldredge,64 the Georgia Supreme Court,
in the first such case in the nation, and one of only four consensual cases
ever reported, ruled unanimously that cunnilingus between two women did not
violate the sodomy law, because of its clear statement that acts had to be
committed either man with man or man with woman. Justice Warren Grice, writing
for the Court, said that merely because
the act here alleged to have been committed is just as loathsome when
participated in by two women does not justify us in reading into the
definition of the crime something which the lawmakers omitted.65
The opinion gives absolutely no information as to how Ella Thompson and her
unnamed partner were discovered.
The Georgia legislature showed that it was in no hurry to change the law
after this court opinion.
A law enacted in 193966 permitted the
granting of probation to certain felons, excluding those convicted of any of
nineteen specified crimes, including sodomy.67
Another provision of the law granted the trial court the power to reduce from
a felony to a misdemeanor any conviction other than one of the nineteen
excluded crimes, including sodomy.68
In the 1941 case of Green v. State,69
the Court of Appeals upheld a sodomy conviction despite conflicting testimony.
Apparently using a thesaurus to find a new negative adjective to describe
sodomy, this Court called sodomy "gruesome."70
A police officer allegedly spotted Green engaging in sodomy in the restroom of
a public auditorium in Atlanta, even though another witness testified that it
was questionable if anyone actually could have seen such detail from the
position and distance the officer claimed to be.71
Drunkenness was rejected as a sodomy defense in the 1944 case of Carter
In McKenzie v. State,73 from 1945,
the Court of Appeals upheld a sodomy conviction, rejecting the defendants
contention that the absence due to illness of his lead counsel for a portion
of the trial made it impossible for him to receive a fair trial.74
Period Summary: The early tolerance shown in Georgia disappeared
by the turn of the century. The Alice Mitchell murder trial in Tennessee
and the Oscar Wilde "gross indecency" trial in England caused a
legal backlash both in England and the United States. In 1904, the Georgia
Supreme Court became the first in the nation to hold that the term
"crime against nature" embraced an act of fellatio. The Court
referred to fellatio as the "baser form of the abominable and
disgusting crime against nature." It claimed that, had fellatio been
prevalent in England in earlier times, it would have been construed by
courts to be covered under the term "crime against nature." This
logic later was extended to cover heterosexual cunnilingus, although
Lesbian cunnilingus was held not to be included owing to the specificity
of the statutory language, "man with man, or in the same unnatural
manner with woman."
The Kinsey Period, 1948-1986
In 1949, Georgia finally amended its sodomy law,75
more than a century after it last did so. No effort was made to reword the
proscriptions to include frottage or acts between women. The compulsory life
imprisonment penalty was reduced to a term of 1-10 years.76
As a result of this law, the Attorney General received an inquiry from a
Mr. R.J. Harris, apparently a private citizen, as to whether the new penalty
would ameliorate the sentences of those already in prison. The unofficial
opinion77 (because of Harriss private
status) was that the law would not affect those already in prison.
Later in 1949, in Barton v. State,78
the Court of Appeals overturned a sodomy conviction because the indictment had
not specified how Barton was alleged to have committed the act, since
different ways existed of committing sodomy.79
Barton was retried and convicted, and his second conviction also reached
the Court of Appeals. In Barton II,80
the Court upheld the right of the trial court to give Barton a life sentence
for sodomy for an act committed prior to the amelioration of the penalty in
1949, even though he had been retried after the penalty had been
A new law enacted in 195082 eliminated the
exclusion of sodomy from the list of crimes for which probation could be
In the 1951 case of Gibson v. State,83
the Court of Appeals upheld a sodomy conviction over the contention of the
defendant that his partner was an accomplice whose testimony had not been
corroborated. The Court believed that the youth of the partner, 15, along with
other unspecified "circumstances in connection with the case," made
the question of whether he was an accomplice a matter for the jury.84
The Court also said that the "evidence, of course, is sordid."85
Another unofficial opinion of the Attorney General86
in 1951 responded to an inquiry from a Mr. William Green, who asked for
information on "offenses against the family" in Georgia. The
Attorney General responded with a listing of them and included sodomy.87
In 1953, the Georgia Court of Appeals decided a sodomy case with a twist, Community
Theatres Co. v. Bentley.88 The court
rejected a suit by a woman against the theatre corporation that employed a man
who engaged in sodomy with her son. The court found that the sexual activity
did not occur within the mans scope of employment, therefore absolving the
employer of liability.
Georgia passed a law in 195689 that limited
the parole eligibility of persons convicted of sodomy. Such persons had to
receive a psychiatric examination before release on parole to see if they had
any "mental, moral or physical impairment which would render release
In 1957, the Court of Appeals upheld a sodomy conviction in Johnson v.
State.91 In this case, Johnson had been
spotted by a police officer in a bus station "going upstairs" and
then into a restroom. The officer went outside and looked in a window,
spotting Johnson "commit the offense of sodomy on another man who also
was arrested for this offense at that time."92
In the 1961 case of Burge v. State,93
the Court of Appeals unanimously upheld a sodomy conviction when it rejected
the defendants contention that his partners age needed to be stated in
an indictment, with the Court noting that the age of the partner was
irrelevant under state law.94 The Court also
stated that testimony as to the homosexuality of Burge was not corroborative
of his guilt in an act of sodomy.95
In 1963, in Riley v. Garrett,96 the
Georgia Supreme Court unanimously overruled the 1917 Comer decision and
stated that cunnilingus did not constitute a crime under the sodomy law. The
reasoning was that, due to the wording of the law, since two men could not
perform cunnilingus, the law could not recognize as criminal cunnilingus
between a man and a woman.97
A 1964 statute98 expanded the power to
reduce crimes from felonies to misdemeanors to the jurors in a case, as well
as the trial judge, and eliminated the list of excluded crimes from this
power, thus permitting the reduction of a sodomy charge to a misdemeanor.99
Georgia became the first Southern state to adopt a comprehensive criminal
code revision after the American Law Institute made its recommendation to
decriminalize consensual sodomy. It did not follow the recommendation. In the
new code of 1968,100 Georgia raised the
penalty for sodomy from 1-10 years to 1-20101
and expanded the law to include cunnilingus, including between women.102
A provision also outlawed solicitation for sodomy as an unspecified
misdemeanor.103 The public indecency law was
expanded to include a "lewd appearance in a state of partial or complete
nudity,"104 and a "lewd caress or
indecent fondling of the body of another person."105
In 1969, in Mitchell v. State,106
the Court of Appeals decided that proof of penetration could be obtained from
circumstantial evidence only107 and that the
testimony of a police officer need not be corroborated,108
thus giving police carte blanche for harassment.
In a case from 1970, Carter v. State,109
the Georgia Court of Appeals decided that the states revised sodomy law did
not require actual penetration. All that was required to constitute a
violation was "some contact."110
An Opinion of the Attorney General from 1973111
held that examination of a sex criminal before parole was required under the
A commission recommended, in late 1976, the repeal of the states sodomy
law, but the legislature chose to ignore the recommendation.112
In 1977, the Court of Appeals upheld a conviction for solicitation of
sodomy in Anderson v. State.113
Anderson had offered to give an undercover police officer a "blow
job" and the Court found this term to be of sufficient clarity that the
jury could render an intelligent verdict.114
In the brief 1983 case of Massey v. State,115
the Court of Appeals said that the testimony of a consenting partner in sodomy
needed no corroboration, despite the command of Georgia law that convictions
could not be had on the uncorroborated testimony of an accomplice.116
The 1984 case of Allen v. State117
decided several issues. The Court of Appeals ruled that the states
prostitution law covered sexual acts for hire between males,118
that homosexual activity constituted adultery,119
and upheld the right of the trial court to charge the jury that the
prostitution law covered "physical intimacies" between persons,
rather than the narrower term "sexual intercourse."120
This decision allowed prosecutions for practically any kind of erotic activity
The sodomy case of the century was Bowers v. Hardwick et al.121
decided in 1986. Michael Bowers had been arrested in Atlanta in his own
bedroom for consensual fellatio with another male by a police officer who had
been admitted to the apartment by a roommate. Challenging the
constitutionality of the Georgia sodomy law, Hardwick lost at the trial court,
but won in the Eleventh Circuit Court of Appeals.122
By a vote of 5-4, the U.S. Supreme Court reversed the Court of Appeals and
found the law to be constitutional. The opinion was written by Justice Byron
White following a number of back-room machinations.123
First, White apparently attempted to temper the impact of his opinion,
realizing the unprecedented storm of controversy that would be unleashed by
it, by stating that the Hardwick case
does not require a judgment on whether laws against sodomy between
consenting adults in general, or between homosexuals in particular, are
wise or desirable. It raises no question about the right or propriety of
state legislative decisions to repeal their laws that criminalize
homosexual sodomy, or of state-court decisions invalidating those laws on
state constitutional grounds. The issue presented is whether the Federal
Constitution confers a fundamental right upon homosexuals to engage in
sodomy and hence invalidates the laws of the many States that still make
such conduct illegal and have done so for a very long time. The case also
calls for some judgment about the limits of the Courts role in carrying
out its constitutional mandate.124
White rejected the claim that the previous Court decisions on privacy could
give Hardwick any relief. Dismissing any possibility of a loving, stable
relationship between persons of the same sex which would include sexual
intimacy, he believed that no
connection between family, marriage, or procreation on the one hand and
homosexual activity on the other has been demonstrated, either by the
Court of Appeals or by respondent.125
White also said that the Court was "quite unwilling" to declare a
"fundamental right to engage in homosexual sodomy."126
Because of the "ancient roots" in law against sodomy, no such
fundamental right could be inferred from it.127
White noted, incorrectly, that sodomy was a crime in all 13 colonies at the
time of the adoption of the Bill of Rights,128
and included errors in his history of the laws in existence at the time of the
adoption of the 14th Amendment in 1868.129 The
other historical error is that the sodomy laws in existence in 1868 did not,
with two possible exceptions, recognize oral sex as a crime.130
Oral sex is what Hardwick performed to trigger his arrest. Against this
lengthy history of criminalization, White stated that a claim of sodomy as a
fundamental right was "at best, facetious."131
The Court would not "discover new fundamental rights imbedded in the Due
Process Clause" because it was
most vulnerable and comes nearest to illegitimacy when it deals with
judge-made constitutional law having little or no cognizable roots in the
language or design of the Constitution.132
White and his four colleagues apparently saw no contradiction in this claim
from the previously decided cases on privacy, even though none of the terms
"family," "marriage," or "procreation" is found
in the Constitution. That right to privacy was the same judge-made law that
White criticized. The fact that almost all of the reported sodomy cases
throughout the United States involved either force, an underage partner, or
acts in a public place also seemed lost on the Court. White concluded his
exceedingly superficial opinion by stating that the "presumed belief of a
majority of the electorate in Georgia that homosexual sodomy is immoral and
unacceptable" was a rational basis for the existence of the law.133
Again, he overlooked the contradiction in that the laws against contraception,
abortion, and miscegenation, because they were on the books, had the
"presumed" support of a majority of the electorate, but that fact
did not stop the Supreme Court from striking them down.
Chief Justice Warren Burger wrote a brief concurring opinion that made
Whites opinion seem pro-Gay. Laws against "homosexual conduct"
had been around for a long time and they were
firmly rooted in Judeao-Christian moral and ethical standards.
Homosexual sodomy was a capital crime under Roman law.134
Blackstone referred to sodomy,
"the infamous crime against nature" as an offense of
"deeper malignity" than rape, a heinous act "the very
mention of which is a disgrace to human nature," and "a crime
not fit to be named." [Emphasis is Burgers].135
For the Court to
hold that the act of homosexual sodomy is somehow protected as a
fundamental right would be to cast aside millennia of moral teaching.
This is essentially not a question of personal "preferences"
but rather of the legislative authority of the State. I find nothing in
the Constitution depriving a State of the power to enact the statute
Another, more temperate, concurrence was that of Justice Lewis Powell, who
originally had voted to strike the law, then changed sides. Although he joined
the majority on the broad issue of fundamental rights, Powell felt that the
law was unconstitutional as cruel and unusual punishment because of the 1-20
year penalty that could be imposed for Hardwicks consensual act. However,
since Hardwick never had raised that issue, it could not be used as a reason
to strike the law.137
The language of White and even Burger pales when compared to the timbre of
the dissent of Justice Harry Blackmun, joined by Justices Brennan, Marshall,
and Stevens. Blackmun, in his most eloquent written opinion, and certainly one
that is among the Supreme Courts most eloquent, began by chastising the
majority for its inability to understand what the issue was about. The case
was not about a fundamental right to engage in homosexual sodomy, but about
the right to be let alone.138 Critical of the
"haste" with which the majority reversed the Court of Appeals and
saying that it "distorted" the issue in the case,139
Blackmun got to the heart of the matter. The majoritys
almost obsessive focus on homosexual activity is particularly hard to
justify in light of the broad language Georgia has used.140
Blackmun noted that the Georgia law of 1968 actually broadened the
scope of the law to cover not only acts between women, but also all
heterosexual sodomy.141 Although Blackmun saw
potential relief for Hardwick under both the Eighth and Fourteenth Amendments,
he decided to concentrate on Ninth Amendment privacy issues.142
He felt that only
the most willful blindness could obscure the fact that sexual intimacy
is "a sensitive, key relationship of human existence, central to
family life, community welfare, and the development of human
personality[.]" [Citations omitted]. The fact that individuals define
themselves in a significant way through their intimate sexual
relationships with others suggests, in a Nation as diverse as ours, that
there may be many "right" ways of conducting those
relationships, and that much of the richness of the relationship will come
from the freedom of an individual to choose the form and nature of these
intensely personal bonds.143
Blackmun also stated that the majoritys
failure to comprehend the magnitude of the liberty interests at stake
in this case leads it to slight the question whether petitioner, on behalf
of the State, has justified Georgias infringement on these interests.144
He believed not. Blackmun sarcastically disposed of Georgias argument
that the sodomy law helped prevent the spread of communicable diseases.
Inasmuch as this case was dismissed by the District Court on the
pleadings, it is not surprising that the record before us is barren of any
evidence to support petitioners claim. [Footnote omitted].145
Blackmun attacked the argument that the length of time that sodomy has been
criminalized was a rational basis for its constitutionality146
and skewered Georgia for citing religious authorities to prove that the sodomy
law "represents a legitimate use of secular coercive power."147
He also gave a brief, eloquent statement of what the case was all about.
It is precisely because the issue raised by the case touches the heart
of what makes individuals what they are that we should be especially
sensitive to the rights of those whose choices upset the majority.148
In conclusion, Blackmun noted that the Court took only three years to
realize its error in a major religious freedom case and reverse itself,149
and stated that he could
only hope that here, too, the Court soon will reconsider its analysis
and conclude that depriving individuals of the right to choose for
themselves how to conduct their intimate relationships poses a far greater
threat to the values most deeply rooted in our Nations history than
tolerance of nonconformity could ever do.150
Although he joined the historic dissent of Blackmun, Justice John Paul
Stevens also wrote a separate dissenting opinion pointing out that,
historically, sodomy was considered equally odious whether heterosexual or
homosexual and the laws against it did not exempt married couples.151
He also believed that the right of privacy was equal for all persons,
regardless of affectional orientation.152
Period Summary: Georgia reacted to the first Kinsey report by
making the first change in its sodomy law in more than a century in 1949
when it eliminated the compulsory life sentence. However, it also followed
the medical model then prevalent in societythe belief that those
engaging in sodomy were "sick." Separate laws limited probation
for convicted sodomites and required mental examinations of them. One
example of judicial thaw was the 1963 Georgia Supreme Court decision that
overruled the World War I-era precedent that heterosexual cunnilingus was
covered by the law. Since the unique wording of the sodomy law had not
been changed with the penalty, it still covered only acts "man with
man, or in the same unnatural manner with woman." The Court reasoned
that, since two men could not perform cunnilingus, that act was not
prohibited to heterosexuals. Georgia became the first Southern state to
adopt a new criminal code after the American Law Institute published its
Model Penal Code. Passed in 1968 as the first wave of Gay activism swept
over the country, the code showed no humanitarian impulses. The maximum
penalty for sodomy was doubled from 10 to 20 years, and the wording was
changed to permit prosecution of Lesbians and heterosexuals. This law was
challenged in federal court raising broad civil liberties questions and,
in 1986, the U.S. Supreme Court upheld it in a 5-4 vote. Ironically, the
Court gave as its reasoning the "presumed belief" that a
majority of the Georgia electorate found homosexual sodomy
"immoral" and "unacceptable." This "presumed
belief" overlooked the history of toleration that opened the Georgia
colonys history and lasted throughout the colonial era and into the
The Post-Hardwick Period, 1986-Present
In 1986, in Wimpey v. State,153 the
Georgia Court of Appeals sustained a sodomy conviction over the contention of
Wimpey that what he had been accused of doing was "anatomically
impossible."154 The Court did not give
any specifics of the alleged act.
Also in 1986, in Stover v. State,155
the Georgia Supreme Court rules 6-1 that a consensual act of sodomy occurring
on an open bed of a truck occurred in a "public place." Justice
George Smith dissented without opinion.
In the 1987 case of Gordon v. State,156
the Georgia Supreme Court upheld a sentence of 10 years in prison followed by
10 years of probation for a man convicted of consensual sexual activity
with a very willing 16-year-old male. In addition, the Court implicitly stated
that the law did cover acts between people of the opposite sex when it
declined to address the issue.157
In 1990, the Georgia Supreme Court, deciding the case of Ray v. State,158
unanimously rejected the contention of Ray that the sodomy law was enforced
selectively against persons with a homosexual orientation. The rejection was
based simply on the fact that Ray had shown "no evidence" to that
effect.159 The fact that the Hardwick
case showed selective enforcement seemed to be lost on the Court.
A victory came in the 1991 case of Fisher v. State,160
when the Georgia Court of Appeals unanimously overturned a solicitation
conviction. The court found that the defendant had been encouraged by the
undercover police officer, and the facts of the case made it unclear as to
whether Fisher actually had solicited him.
In 1991, the public indecency law was amended to make a third or subsequent
conviction for the "lewd caress or indecent fondling" a felony with
a penalty of 1-5 years in prison.161
A bill to repeal the sodomy law was introduced into the Georgia Senate in
1993 by Senator Ronald Slotin (D-Atlanta). He believed that its chance of
passage was slim, but that the introduction was to "start the
process."162 The bill would redefine
criminal sodomy so as to exclude "private consensual sexual behavior
among adults."163 However, it did not
A constitutional challenge to the Georgia sodomy law, using the Pavesich
case, met with defeat in 1996 in the case of Christensen v. State.164
The vote of the court to uphold the sodomy law was 5-2, but there was not a
majority opinion. The plurality opinion of three justices, written by Justice
Hugh Thompson, answered the privacy rights argument with a single sentence.
"We hold that the proscription against sodomy is a legitimate and valid
exercise of state police power in furtherance of the moral welfare of the
Justice Norman Fletcher concurred on far more narrow grounds, limiting his
comments to the fact that Christensens prosecuted solicitation occurred in
a public place and was asked of a stranger. One other justice concurred only
in the judgement. Thus, Thompsons opinion was without precedental value as
to the constitutional protection of private sexuality.
Separate dissents were written by Justice Leah Sears, the states most
consistent and eloquent defender of the dignity of Gay and Lesbian people, and
by Justice Carol Huntstein. Sears criticized Thompsons opinion for stating
what is beyond the pale of majoritarian morality also is beyond the
limits of constitutional protection. If we lived in an autocracy, the
majority [sic] would be correct. But such is not the case.165
The result of the opinion was "pathetic and disgraceful."166
Sears believed that, in "the long history of human governance," the
advent of democracy marked a major moral advance because of its
recognition of the inherent dignity of the individual and the worth of his
private life. The underlying idea that the individual has a right to rule
himself in both private and public affairs was a monumental challenge to
the many authoritarian conceptions of government that preceded democracy.
Quite consciously, then, this countrys original social contract with
its citizens recognized and gave credence to our immense variety of
personal tastes and values, and granted to each citizen the right to
pursue his or her own conception of the good. Under the unique American
democratic scheme, government was intended to play a relatively
insignificant role in the individuals pursuit of the good.167
Sears "respectfully yet resolutely" dissented.168
Huntstein called to the other sides attention the fact that the Georgia
sodomy law covered both married and unmarried heterosexuals as well. She also
said that the sodomy law and criminal laws like it are "based upon the
body parts involved during private consensual sex," and "are ignored
and ridiculed by the populace," and "enforced with discriminatory
selectivity." This only can "breed contempt and foster disdain and
disrespect for the law, the State, and the law enforcement community."169
Evidently the highest court did some thinking on this issue. In 1998, less
than three years after Christensen, the Georgia Supreme Court did an
about-face with Powell v. State.170
Fortunate that Christensen did not command a majority, that case became
easier to overrule. By a 6-1 vote, the Court, speaking through Justice Robert
Benham, found, in perhaps this countrys least interestingly written sodomy
law-striking opinion, that Pavesich and its progeny made a compelling
argument to void the law.
A long dissent was written by Justice George Carley, the Courts most
unrelenting opponent of Gay and Lesbian rights. He complained that the
majority "concludes that our state constitution does confer upon the
citizens of Georgia a fundamental right to engage in a consensual act which
the majority itself concedes, as it must, that many Georgians find morally
reprehensible."171 Thus, Carley
believed that constitutional rights were determined by public opinion polling
and that not necessarily even majority beliefs should prevail, only
"many" members of the public.
Period Summary: Since the Hardwick decision was announced, the
Georgia courts have been nearly uniformly conservative in their outlook on
sexual freedom. The Georgia legislature showed no initiative to repeal the
law. Curiously, the Georgia Supreme Court reversed itself in less than
three years and found a room for private, consensual sodomy in the states
constitutional protection for privacy.
1 William A. Hotchkiss, A
Codification of the Statute Law of Georgia, Including the English
Statutes of Force, (Savannah:John M. Cooper, 1845), page 20. The
charter was signed June 9, 1732.
2 Id. at 24.
3 Id. at 25-26.
4 Id. at 26.
5 William H. Brown, trans., Detailed
Reports on the Salzburger Emigrants Who Settled in America...Edited by
Samuel Urlsperger, Vol. 3, (Athens GA:University of Georgia Press,
1972), page 314.
6 Id. at xi to xix.
7 E. Merton Coulter, ed., The Journal
of William Stephens 1743-1745, Vol. 2, (Athens GA:University of
Georgia Press, 1958-59), page 3. The diary entry is dated Aug. 7, 1743
and states that the sentence had been carried out a short while before.
Stephens noted that he learned of this event only by being told by a Mr.
Spencer, and that the news was "a little Surprizing [sic]"
8 Id. at 157.
9 William Schley, A Digest of the
English Statutes of Force in the State of Georgia, (Philadelphia:J.
Maxwell, 1826), page xxvi. The surrender occurred in June 1752.
11 The Earliest Printed Laws of the
Province of Georgia 1755-1770, Vol. 1, (Wilmington DE:Michael
Glazier, Inc., 1978), no pagination, enacted Feb. 17, 1755.
12 Oliver H. Prince, A Digest of the
Laws of the State of Georgia, (Milledgeville:Grantland & Orme,
1822), page 310, enacted Feb. 25, 1784.
13 Id. §I.
15 William Schley, A Digest of the
English Statutes of Force in Georgia, (Philadelphia:J. Maxwell,
16 Id. at 491-494.
17 Id. at xx.
18 Id. at xxvi-xxvii.
19 Id. at xxvii.
22 Id. at xxviii.
23 Cain and Morris v. Monroe, 23
Ga. 82, at 90 (1857).
24 Id. at 91.
25 Statutes of Georgia 1811-1819,
No. 380, enacted Dec. 19, 1816.
26 Id. at 571, §35.
27 Id. No. 381, enacted Dec. 20,
28 Id. at 618, §35.
29 Digest Laws of Georgia Prior to
1837, page 619, Penal Code, enacted Dec. 23, 1833, effective June 1,
30 Id. at 620, §24.
31 Id. at 625, §83.
32 Id. §84.
33 Howell Cobb, A Compilation of the
Penal Code of the State of Georgia, with the Forms of Bills of
Indictment Necessary in Prosecutions Under It and the Rules of Practice,
(Macon:Joseph M. Boardman, 1850). The code was published in August,
34 Id. at 89, §6.
35 Id. at 787.
36 51 Ga. 285, decided during January
37 19 S.E. 758, decided June 4, 1894.
39 46 S.E. 876, decided Mar. 4, 1904.
40 Id. at 881.
42 Id. at 881-882.
43 50 S.E. 68, decided Mar. 3, 1905.
44 Id. at 69-70.
45 Id. at 70.
47 Id. at 72.
48 71 S.E. 135, decided Apr. 12, 1911.
50 88 S.E. 712, decided Apr. 21, 1916.
51 Id. at 73.
53 94 S.E. 314, decided Nov. 14, 1917.
58 94 S.E. 626, decided Dec. 19, 1917.
60 44 Ga.App. 793, decided Nov. 27,
62 198 S.E. 823, decided Sep. 29, 1938.
64 200 S.E. 799, decided Jan. 12, 1939.
65 Id. at 800.
66 Georgia General Acts and
Resolutions 1939, page 285, No. 332, enacted Mar. 24, 1939.
67 Id. at 286.
68 Id. at 287, §2.
69 16 S.E.2d 428, decided Sep. 11,
72 31 S.E.2d 666, decided Sep. 20,
1944. Rehearing denied Oct. 19, 1944.
73 33 S.E.2d 539, decided Mar. 8, 1945.
Rehearing denied Mar. 26, 1945.
74 Id. at 544-545.
75 Georgia General Acts and
Resolutions 1949, page 275, No. 66, enacted Feb. 8, 1949.
76 Id. at 276, §26-6902(b).
77 Opinions of the Attorney General
of Georgia 1948-1949, page 494, issued Apr. 20, 1949.
78 53 S.E.2d 707, decided June 1, 1949.
79 Id. at 710-711.
80 60 S.E.2d 173, decided June 20,
81 Id. at 176.
82 Georgia General Acts and
Resolutions 1950, page 352, No. 762, enacted Feb. 17, 1950.
83 65 S.E.2d 818, decided June 14,
1951. Rehearing denied July 17, 1951.
86 Opinions of the Attorney General
of Georgia 1950-1951, page 257, issued Nov. 20, 1951.
87 Id. at 258.
88 76 S.E.2d 632, decided May 16, 1953.
Rehearing denied June 1, 1953.
89 Georgia General Acts and
Resolutions 1956, page 580, No. 377, enacted Mar. 9, 1956.
90 Id. at 582, §5.
91 101 S.E.2d 107, decided Nov. 13,
93 120 S.E.2d 200, decided May 12,
94 Id. at 201.
95 Id. at 202.
96 133 S.E.2d 367, decided Oct. 15,
97 Id. at 370.
98 Georgia General Acts and
Resolutions 1964, Vol. 1, page 483, No. 924, enacted Mar. 18, 1964,
effective July 1, 1964.
99 Id. at 484, §5.
100 Georgia General Acts and
Resolutions 1968, page 1249, No. 1157, enacted Apr. 10, 1968,
effective July 1, 1969.
101 Id. at 1299, §26-2002.
103 Id. §26-2003.
104 Id. at 1301, §26-2011(c).
105 Id. §26-2011(d).
106 170 S.E.2d 765, decided Oct. 6,
107 Id. at 766-767.
108 Id. at 766.
109 176 S.E.2d 238, decided June 12,
110 Id. at 240.
111 Opinions of the Attorney
General of Georgia 1973, page 31, issued Feb. 21, 1973.
112 The Advocate, Vol. 206
(Dec. 29, 1976), page 8.
113 235 S.E.2d 675, decided May 12,
114 Id. at 676-677.
115 299 S.E.2d 148, decided Jan. 7,
117 316 S.E.2d 500, decided Feb. 15,
1984. Rehearing denied Mar. 5, 1984. Cert. denied Apr. 25, 1984.
118 Id. at 501-502.
119 Id. at 502.
121 478 U.S. 186, decided June 30,
1986. Rehearing denied, 478 U.S. 1039, decided Sep. 11, 1986.
122 760 F.2d 1202.
123 When the case arrived at the
Supreme Court after the Eleventh Circuit struck down the law, only Byron
White and William Rehnquist voted to hear the case. Before a denial of
certiorari could be handed down (thus leaving the Eleventh Circuits
striking of the law standing), liberal Justice William Brennan changed
his vote, believing it an important civil liberties case. His close
friend and fellow liberal Thurgood Marshall was persuaded to change his
vote, giving the case the four votes necessary for a hearing. Brennan
then was persuaded by Justice Harry Blackmun to change his vote again,
fearing that the Courts conservative majority would reverse the
Eleventh Circuit, leaving only three votes to hear the case. At this,
Chief Justice Warren Burger changed his vote as well, again giving the
case the necessary four votes for review. Marshall then considered
withdrawing his vote, but feared appearing like a Brennan clone, so he
kept his vote for review. See the Washington Blade, Oct. 20,
1995, page 1.
124 478 U.S. 186, at 190.
125 Id. at 191.
127 Id. at 192.
128 Id. and n.5. In Georgia,
the state at issue, sodomy was, and always had been, legal at the time
of the adoption of the Bill of Rights. See the early part of this
chapter. White also made lesser errors in the footnote, e.g., New
Hampshires first sodomy law was adopted in 1679, not 1718, and a new
law was enacted in 1791 before the adoption of the Bill of Rights (q.v.);
New Yorks sodomy law in force at the time of the adoption of the Bill
of Rights was passed in 1788, replacing the 1787 law White claimed was
in force (q.v.); and Rhode Island passed its first sodomy law in
1647, not 1662, and the 1663 law [not 1662 as White claimed] was
replaced by a law of 1729 (q.v.).
129 Hardwick, at 193, n.6. He
lists the wrong laws for Arkansas, Florida, Kansas, Maine, Rhode Island,
and Vermont, and omits sodomy laws in existence for the District of
Columbia, Idaho, North Dakota and South Dakota (then known together as
the Dakota Territory), and Wyoming, as well as a common-law reception
statute in New Mexico. See the respective jurisdictions for these laws.
130 Fellatio possibly was recognized
as a crime only in Connecticut and Tennessee under their oddly worded
laws (q.v.). A large percentage of the states did not judicially
recognize fellatio or cunnilingus as sodomy and had to rewrite their
laws to cover it specifically.
131 Hardwick, at 194.
133 Id. at 196.
135 Id. at 197.
137 Id. at 197-198. Powell
later, after having left the Court, stated that he, in hindsight,
realized that he voted the wrong way in the case. See the Washington
Post, Oct. 26, 1990, 3A:1. The history of Powells switch is found
in the Washington Blade, Oct. 20, 1995, page 1.
138 Hardwick, at 199.
139 Id. at 200.
142 Id. at 202.
143 Id. at 205.
144 Id. at 208.
146 Id. at 210-211.
147 Id. at 211.
148 Id. This quotation was
reprinted widely in newspapers reporting the Courts decision. See USA
Today, July 1, 1986, page 1.
149 Hardwick, at 213-214. The
cases concerned compulsory flag salutes by students and were brought by
Jehovahs Witnesses. The first case, which they lost, was Minersville
School District v. Gobitis, 310 U.S. 586 (1940), and that precedent
was overruled in a broadly worded decision in favor of religious
freedom, West Virginia Board of Education v. Barnette, 319 U.S.
150 Hardwick, at 214.
151 Id. at 215.
152 Id. at 218-219. Ironically,
Bowers later admitted having engaged in adultery while Attorney General.
Adultery still is a criminal offense in Georgia. The Oregonian,
June 6, 1997, 14A:1.
153 349 S.E.2d 773, decided Oct. 14,
1986. Cert. denied Nov. 13, 1986.
154 Id. at 774.
155 350 S.E.2d 577, decided Dec. 4,
156 360 S.E.2d 253, decided
Sep. 24, 1987.
157 Id. at 254.
158 389 S.E.2d 326, decided Mar. 8,
159 Id. at 327.
160 405 S.E.2d 117, decided
Apr. 1, 1991.
161 Georgia General Acts and
Resolutions 1991, page 966, No. 406, enacted Apr. 11, 1991.
162 Washington Blade, Apr. 2,
1993, page 34.
163 Senate Bill 350, §1.
164 468 S.E.2d 188, decided Mar. 11,
1996. Reconsideration denied Mar. Mar. 28, 1996.
165 Id. at 191.
166 Id. at 192.
167 Id. at 198-199.
168 Id. at 199.
169 Id. at 199.
170 510 S.E.2d 18, decided
Nov. 23, 1998. Reconsideration denied Dec. 17, 1998.
171 Id. at 27.
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