Reining in Government Intrusion
November 24, 1998
Box 4167, Macon, GA 31213
The Georgia Supreme Court struck down the state's controversial anti-sodomy statute
Monday on the grounds it rejected in 1996: that the law clashed with the state
constitution's guarantee of the right of privacy.
The type of case involved in Monday's decision may have made the difference: It
involved oral sex between a man and woman, whereas the 1996 case involved a man arrested
for soliciting sex from a male.
The statute has been both attacked and defended as prohibiting homosexual conduct. Many
Georgians believe homosexual behavior to be against the moral law and harmful to society's
interests, citing biblical passages such as Leviticus 18:22 and Romans 1:25-27.
But technically, this law also made criminals of every heterosexual husband and wife
whenever they indulged in acts other than genital-to-genital sexual intercourse in the
privacy of their own bedrooms.
The law was rarely enforced, and then selectively -- generally against the homosexual
behavior at which it was really aimed. Heterosexual couples could ignore it with impunity,
and did, some daily.
That is one reason the court was correct to overturn the law. As Justice Carol W.
Hunstein wrote in dissenting from the court's 1996 decision, statutes "which are
ignored and ridiculed by the populace and which are enforced with discriminatory
selectivity can only breed contempt and foster disdain for the law. ..."
But the second, and paramount, reason why the court was correct involves the question
of whether any consenting adult's private, non-commercial sexual behavior should be
regulated by government.
The right to privacy was recognized by Georgia's high court back in 1905. The 1998
court found that under the sodomy law "the public gains no benefit and the individual
is unduly oppressed by the invasion of the right to privacy."
The state Supreme Court maintained Monday that the public is protected against sexual
assault, child molestation and public displays of sex by other criminal statutes. These
laws should be vigorously enforced and prosecuted.
Some prosecutors feel they may need to replace this law as a tool for prosecuting
offensive behavior in places such as public restrooms; the General Assembly could try to
pass a law more narrowly drawn that would not ban strictly private conduct.
The court's decision does not foster moral meltdown. It merely reins in the power of
government to intrude and oppress.
-- Ed Corson
For the editorial board
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