Georgia Court Says Measure Violates of State Constitution
Anti-Sodomy Law Overturned
November 23, 1998
By Rebecca Leung
Georgias highest court today threw out the states long-standing
anti-sodomy law, nearly a decade after the statute survived a Supreme Court
The state law "manifestly infringes upon a constitutional provision
which guarantees to the citizens of Georgia the right of privacy,"
Chief Justice Robert Benham wrote for the Georgia Supreme Court, which voted
6-1 to overturn the conviction of Anthony Powell, who was found guilty of
sodomizing his 17-year-old niece in 1996 but acquitted of raping her.
Todays ruling was hailed by the gay and lesbian community, who say they
have disproportionately been the targets of anti-sodomy laws.
"This is not to be seen as a new right to privacy, but a public
recognition that this statute is out of step with modern realities," said
Stephen Scarborough, staff attorney for the southern regional office of Lambda
Legal Defense and Education Fund.
Constitutional Right to Privacy
In a 1986 decision, Bowers vs. Hardwick, the U.S. Supreme Court upheld
Georgias anti-sodomy law, holding that consenting adults have no
constitutional rights to private homosexual conduct.
Former state Attorney General Michael Bowers, who defended the law before
the U.S. Supreme Court in the 1986 case, said he was surprised by todays
"Id like to see their reasoning," he said. "Its
obviously the law now, but I cant imagine how they can make such a ruling.
I would be very surprised if you dont see a legislative move to alter
Because the Georgia Supreme Court is the ultimate authority on the states
Constitution, the state cannot appeal todays ruling. Legislators would have
to amend the Constitution before being able to pass a similar law.
In the current case, Powell was charged with raping and sodomizing his
niece, but was convicted of sodomy after his lawyers argued that the sex was
consensual. Under the sodomy law, any oral sex heterosexual or homosexual,
even if consensual was illegal.
Justice George H. Carley was the lone dissenter. He wrote that the majority
had "usurped the legislative authority of the General Assembly to
establish the public policy of the state."
Challenges Filed, Laws Overturned
As recently as the early 1960s, all 50 states had some sort of criminal law
that outlawed consensual sodomy. Now, only 13 other states have sodomy laws
that make consensual oral and anal sex between heterosexual or gay couples a
crime, while five other states have anti-sodomy laws that apply only to
Challenges to state statutes have already been filed in Maryland, Texas and
Arkansas. And states like Tennessee, Montana and Rhode Island recently
overturned state anti-sodomy laws.
Civil rights advocates say the Georgia decision could have a great effect
on future challenges to sodomy laws in other states.
"This is indeed a landmark decision given that it was Georgia which
first instigated the U.S. Supreme Court case, which everyone who supports
sodomy laws points to for validation of their beliefs," said Kate
Monteiro, president of the Rhode Island Alliance for Lesbian and Gay Civil
Rights, which this year led a successful drive to repeal Rhode Islands
112-year-old anti-sodomy statute.
"I hope and expect that state legislators and judges around the
country will look at other states that they dont consider progressive or
sophisticated as they are like Georgia and Rhode Island and say if
Georgia, home of Bowers vs. Hardwick can do this, so can we."
The Associated Press contributed to this report.
[Home] [News] [Georgia]