Last edited: February 14, 2005


Georgia Supreme Court Overturns Sodomy Law

Associated Press, November 23, 1998

By James Pilcher, Associated Press Writer

ATLANTA (AP) -- The Georgia Supreme Court threw out the state's anti- sodomy law today, 12 years after the U.S. Supreme Court upheld the statute with a landmark ruling that said there was no right to privacy in sexual contact.

The Georgia court 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.

Today's majority opinion, by Chief Justice Robert Benham, said the state law "manifestly infringes upon a constitutional provision ... which guarantees to the citizens of Georgia the right of privacy."

The U.S. Supreme Court had taken the opposite view, holding in 1986 that consenting adults have no constitutional right 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 today's action.

"I'd like to see their reasoning," he said. "It's obviously the law now, but I can't imagine how they can make such a ruling. ... I would be very surprised if you don't see a legislative move to alter that."

The state cannot appeal today's ruling, because the Georgia Supreme Court is the ultimate authority on the state's Constitution. Legislators would have to amend the Constitution before being able to pass a similar law.

Twelve other states have sodomy laws that make consensual oral and anal sex between heterosexual or homosexual couples a crime, while six other states have anti-sodomy laws that apply only to homosexuals.

The U.S. Supreme Court's 5-4 decision reversed a federal appeals court, which said the Georgia law -- defining sodomy as "any sexual act involving the sex organs of one person and the mouth or anus of another" -- infringed on a "fundamental" constitutional right to privacy.

The decision came in a challenge by Michael Hardwick, a gay Atlanta bartender who was arrested in 1982 for committing sodomy in his home. The charge was later dropped, but Hardwick filed suit in federal courts seeking to have the law thrown out. Because it was a federal case, the state Supreme Court did not consider the question at that time. Hardwick died of AIDS in 1991.

Powell was charged with raping and sodomizing his niece, but was convicted only 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.

Gwinnett County district attorney Daniel Porter had argued that Powell had no right to use the case to challenge the sodomy law because he had forced himself upon the girl.

But the original jury failed to convict on rape charges, even though Powell's teen-age niece testified that she wept through the oral sex and intercourse. The incident took place in Powell's home in Norcross while his wife was sleeping.

Justice George H. Carley was the lone dissenter in today's ruling, writing that the majority on the court "usurped the legislative authority of the General Assembly to establish the public policy of this state."

But the majority ruled that the state has numerous other statutes prohibiting sexual assault, child molestation and public sex.

In light of those laws, the sodomy statute's reason for being "can only be to regulate the private conduct of consenting adults, something which Georgia's right of privacy puts beyond the bounds of government regulation."

"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. There is still a lot of work to be done."

Cothren added that "the sodomy law doesn't just affect gays. I don't believe a lot of my heterosexual brothers and sisters had stopped committing sodomy."

Powell spent 14 months in jail before making bail last year pending his appeal.

"He said he was happy and relieved and glad for the chance to get on with his life," Brenda Joy Bernstein, one of Powell's attorneys, said this morning.

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