Last edited: January 01, 2005


Editorial: Striking Down the Sodomy Laws

New York Times, November 25, 1998
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When Michael Hardwick looked up from the privacy of his apartment in Atlanta one day 16 years ago, he was stunned to see a policeman standing in the door. "What are you doing in my bedroom?" he asked. It is a question that took on a special bitterness for gay men and lesbians after the United States Supreme Court in 1986 upheld the Georgia law against sodomy under which Mr. Hardwick was arrested that day. The law was 170 years old. It prohibited oral and anal sex by anyone, homosexual or heterosexual, and like all such laws in the United States it was modeled on old English law, which was shaped by religious teachings.

In his argument to the Supreme Court, the Georgia Attorney General, Michael Bowers, attacked homosexual sodomy as "anathema to the basic units of our society -- marriage and the family." Five justices bought the argument, upholding the law in a decision that removed any claim homosexuals had to privacy or to protection from government intrusion in their bedrooms. To decide otherwise, Chief Justice Warren E. Burger said, would "cast aside millennia of moral teaching."

But the critical constitutional question, Mr. Hardwick's lawyer later wrote, "was not what Michael Hardwick was doing in his bedroom, but rather what the state of Georgia was doing there." On Monday, ruling in another case, the Georgia Supreme Court agreed and struck down the law. This case arose from heterosexual acts between a man and woman, but the Court made clear that Georgia's Constitution guarantees rights of privacy that make no distinction between homosexuals and heterosexuals. "We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than consensual, private, adult sexual activity," it said.

The Georgia decision follows one by a city circuit judge in Baltimore last month who held that Maryland law could not discriminate by making sodomy illegal for homosexuals and not for heterosexuals. In Rhode Island, the legislature voted to repeal its anti-sodomy law earlier this year. One way or the other, in almost two-thirds of the states, outdated legal restrictions on private sex have fallen away. The remaining holdouts should drop the last traces of this assault on privacy.

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