Last edited: January 01, 2005

Sodomy law faces new challenge

Atlanta Constitution, October 9, 1995

By Peter Mantius, Staff writer

Nine years after the U.S. Supreme Court narrowly upheld a Georgia law prohibiting sodomy, the statute faces a new constitutional test from a man who solicited an undercover sheriff deputy to perform oral sex.

L. Chris Christensen was arrested after he met the deputy at a rest stop off I-20 in Rockdale County and followed him to a nearby hotel. This year, he was sentenced to a year's probation and fined $500.

His case pits the state's ability-to enact laws that uphold "Judeo-Christian" moral standards against Christensen's privacy rights, as guaranteed under the Georgia Constitution.

On Wednesday, his attorneys will argue before the Georgia Supreme Court that the state's sodomy law illegally infringes on that privacy right.

Christensen will claim he has a guaranteed right to engage in private, adult, consensual, noncommercial homosexual acts and that the right can't be canceled by a legislative body. He will further argue that if such acts are not illegal, then soliciting them cannot be a crime.

Georgia Attorney General Michael Bowers says the U.S. Supreme Court's landmark 1986 decision settled the matter: Federal private rights do not extend to homosexual acts.

But Christensen argues that the Georgia Constitution affords greater privacy rights than the U.S. Constitution--a claim supported by judicial history.

Privacy rights spelled out

The Georgia court became the first in the country to spell out privacy rights in 1905 based on the writings of John Stuart Mill and Louis Brandeis, among others.

The Georgia court held that citizens are free to do as they please so long as they do not invade the rights of others or violate public law or policy.

Bowers said in a court brief opposing Christensen's appeal that the Georgia court has no cause to ignore the federal precedent simply "to legitimize: [Christensen's] public solicitation of anonymous, unadorned, homosexual sodomy spawned by nothing more than lust."

Christensen was one of 17 men arrested in a three-day sting operation set up last year by the Rockdale Sheriff's Department after visitors to the rest area complained of being solicited for sex.

Georgia's sodomy law doesn't confine itself to homosexual acts. Oral sex is a felony punishable by up to 20 years in prison when engaged in by people of the same or opposite sexes. And talking about such acts violates the state's law on solicitation of sodomy.

But Bowers noted that the U.S. Supreme Court ruled in Bowers v. Hardwick that a state sodomy law never could be applied to married couples. And on Sept. 19 all 30 Georgians imprisoned on sodomy charges were men.

In the 1986 case, a police officer entered the home of Michael Hardwick of Atlanta and found him engaging in a sexual act with another man. Although the sodomy charge against him was dropped, he challenged the constitutionality of the Georgia law.

The Supreme Court, in a 5-4 vote, rejected his claim, citing "ancient roots" of proscriptions against homosexual sodomy and the fact that it remained illegal in 24 states.

Since 1986, however, several of those state laws have been done away with by state legislatures or state courts that interpreted state constitutions more broadly than the U.S. Supreme Court interpreted the U.S. Constitution in 1986.

For example, the Kentucky Supreme Court recently struck down that state's sodomy law on the grounds that it violated state guaranteed rights to privacy.

But Bowers, quoting former Chief Justice Warren Burger's concurring opinion in Bowers v. Hardwick, said that to legitimize sodomy as a privacy-protected fundamental right "would be to cast aside millennia of moral teaching."

Christensen's appeal has the support of the American Civil Liberties Union and a variety of church groups, including Presbyterian Church (USA).

"Most [Judeo-Christian] adherents would consider homosexuality a sin," said Milner Ball, a law professor at the University of Georgia and a Presbyterian minister, "but that does not mean that it should be punished by the state."

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