Georgia Supreme Court Throws Out Fornication Law
Ban on Sex Out of Wedlock Made Gay Sex Illegal
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
"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
"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
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
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
But Littrell said she is not aware of any attempt to lower Georgia’s age
"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
The Supreme Court agreed with the ACLU in its decision, noting that the
teens "were legally capable of consenting, and they willingly engaged in
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
[Home] [News] [Georgia]