Last edited: February 14, 2005


Gay Groups Cheer Georgia Ruling That Overturns Sodomy Law

Philadelphia Inquirer, November 24, 1998
PO Box 8263, Philadelphia, PA 19101
Fax 215-854-4483

By Lyle Denniston, Baltimore Sun

WASHINGTON -- Bolstering a multistate campaign to end criminal prosecution of private sex acts between homosexuals, the Georgia Supreme Court yesterday struck down that state's law against sodomy.

The Georgia court became the seventh state tribunal in recent years to nullify or severely weaken state laws that are designed mainly to outlaw gay and lesbian sex.

Among gay rights issues being fought out in courts and legislatures, the challenges to sodomy laws have most often succeeded, even as efforts to overturn restrictions on gays in the military and on same-sex marriages have failed.

The Georgia ruling is one of the most important of the recent decisions for symbolic reasons: The state court struck down the same sodomy law that the U.S. Supreme Court had upheld under the federal Constitution 12 years ago. The ruling yesterday was based solely on the Georgia Constitution and is thus confined to that state.

But the Georgia ruling appears to enhance the prospects that state guarantees of privacy would provide the basis for other states' courts to nullify sodomy bans.

The court challenges have been matched in success by efforts in state legislatures to repeal such laws. The latest repeal, in Rhode Island this year, brought to 26 the number of states to eliminate sodomy laws by legislative action.

Five states still ban sodomy between same-sex partners; 14 others have anti-sodomy laws aimed at homosexual and heterosexual partners. Georgia's law targeted sodomy without regard to the gender of the partners. Anti-sodomy laws generally ban oral and anal sex and impose penalties ranging from $200 fines to 20 years in prison.

Challenges to sodomy laws are going forward now in Arkansas, Louisiana, Texas and Puerto Rico. The only recent contrary move came this year in Kansas, where an appeals court upheld that state's sodomy law under the state constitution.

Just two years ago, the Georgia Supreme Court upheld the very law that it nullified yesterday. This time, the court classified private sex acts between consenting adults as a fundamental right, protected by the state constitution's guarantee of privacy.

"Adults who withdraw from the public gaze to engage in private consensual sexual behavior are exercising a right embraced within the right of personal liberty," the court said in its 6-1 decision.

The ruling won praise from gay rights activists. Stephen R. Scarborough, an attorney for Lambda Legal Defense Fund, an advocacy group, said: "The court has sent a bright signal to the rest of the country that the government does not belong in the bedrooms of consenting adults."

But Michael Bowers, a former Georgia attorney general who had successfully defended the Georgia law before the U.S. Supreme Court in 1986, denounced the state court's decision.

"I can't imagine how they can make such a ruling," Bowers said. "I would be very surprised if you don't see a legislative move to alter that."

Laws against sodomy are challenged most often on the basis of their effect on homosexual sex. The Georgia case, however, involved an incident of sodomy between a man and his 17-year-old niece, who is over the age of consent in that state. The man had been charged with rape, but his lawyers argued that the sex was consensual, and the jury had acquitted him on that charge.

Yesterday's state Supreme Court ruling, which overturned the man's sodomy conviction, struck down the anti-sodomy law in its entirety, regardless of the sex of the individuals.

Gay rights activists contend that anti-sodomy laws are a problem primarily for homosexuals because the laws are used as the means of discrimination in jobs, housing and health care, as well as to criminalize homosexual intimacy.

But supporters of these laws contend that their aim is to vindicate the moral beliefs of a majority of the people -- the argument that prevailed in the U.S. Supreme Court in the Georgia case in 1986.

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