Last edited: January 03, 2005


Georgia Supreme Court Overturns Sodomy Law

Atlanta Journal Constitution, November 23, 1998

By Bill Rankin, The Journal-Constitution

The Georgia Supreme Court today overturned the state's controversial anti-sodomy law, saying it violates the state Constitution's protection of the right to privacy.

"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," Chief Justice Robert Benham wrote for a 6-1 majority. "We conclude that such activity is at the heart of the Georgia Constitution's protection of the right of privacy."

The state's sodomy law, attacked for years by gay and civil rights groups, was upheld in 1986 by the U.S. Supreme Court in the landmark case Bowers v. Hardwick. But today's ruling cannot be appealed to the U.S. Supreme Court because the justices decided the issue on the Georgia--rather than the federal--constitution.

Former Attorney General Mike Bowers, whose office argued the Hardwick case, expressed surprise at the ruling. "I'll be surprised if it isn't challenged legislatively," he said.

The decision overturns the conviction of Anthony Powell, convicted in Gwinnett County of sodomizing his 17-year-old niece.

"The people of the state of Georgia should be proud," Powell's lawyer, Steve Sadow, said. "They have a courageous Supreme Court that is interested in protecting their privacy rights."

Powell, sentenced to five years in prison, "is now free as a bird," said Sadow, who had argued that the sodomy was consensual.

The Powell case marked the second time in three years the Georgia Supreme Court had heard a challenge to the law.

In its ruling, the 6-1 majority relied heavily on a 1905 Georgia Supreme Court decision in which the court recognized Georgia's citizens have a "liberty of privacy" guaranteed under the state constitution.

"Today, Georgia recognizes the right of privacy as a fundamental constitutional right," Benham wrote. ". . . It is clear that consensual sexual behavior conducted in private between adults is covered by the principles espoused (in the 1905 ruling) since such behavior between adults in private is recognized as a private matter."

The majority noted there are numerous Georgia laws that fufill the state's role in preventing sexual assaults and protecting the public from sexual acts. "In light of the existence of these statutes, the sodomy statute's raison d'etre can only be to regulate the private sexual conduct of consenting adults, something which Georgia's right of privacy puts beyond the bounds of governmental regulation" Benham wrote.

The court also rejected the state's arguments that laws setting "social morality" are exempt from judicial review.

". . . If we were called upon to pass upon the propriety of the conduct herein involved," Benham wrote, "we would not condone it. . . . While many believe that acts of sodomy, even those involving consenting adults, are morally reprehensible, this repugnance alone does not create a compelling justification for state regulation of the activity."

In dissent, Justice George Carley argued that the majority's reasoning was legally unfounded and that the court "has usurped the legislative authority of the General Assembly to establish the public policy of this state."

"I think that Georgia is preparing itself to move into the 21st century as a just state," said Lynn Cothren, an Atlanta gay activist. "This is an issue we had been working on for a long time."

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