Last edited: February 14, 2005


State's High Court Overturns Sodomy Law

Some State Legislators Will Seek To Have New Law Drafted Next Year

Savannah Morning News, November 24, 1998
Box 1088, Savannah, GA 31402
Fax 912-234-6522

By Lawrence Viele and James Salzer, Savannah Morning News

ATLANTA -- Conservatives in the General Assembly are ready to push for a new anti-sodomy law during the 1999 legislative session after the old one was struck down Monday by the state Supreme Court.

Georgia's highest court ruled that the existing law banning oral and anal sex between consenting adults violates privacy rights established by the state's constitution.

The state cannot appeal the decision because the Supreme Court has final say over what laws are permitted under the Georgia Constitution. So the General Assembly will have to decide whether to approve a new anti-sodomy law or an amendment to the state constitution.

Conservatives will probably meet to consider such legislation in early December when lawmakers get together for their biennial training session in Athens.

"I would expect there would be an effort to remedy that," said Rep. Roger Byrd, D-Hazlehurst, an officer in the Georgia Council of Moral and Civic Concerns. "The public generally supports the sodomy statute."

Senate Minority Leader Eric Johnson, R-Savannah, agreed with Byrd's assessment.

"I would certainly think there ought to be an attempt to fix it," Johnson said. "I don't think the citizens of Georgia want the state to condone anything just because it's done behind closed doors.

"I think we ought to be able to ban gay sex," he said.

Staffers said Democratic Gov.-elect Roy Barnes would not comment on the issue because he had not had time to digest the ruling. Democratic leaders have ignored proposals in recent sessions by members of their party to decriminalize sodomy between consenting adults.

The court's decision was 6-1, with Justice George Carley dissenting. Chief Justice Robert Benham wrote the opinion for the majority.

"We cannot think of any other activity that reasonable persons would rank as more private and deserving of protection from government interference than consensual, private, adult activity," Benham wrote.

In his dissension, Carley wrote that the Supreme Court has no right to supersede a legislative ban on sodomy and that the majority opinion was "contrary to the constitutional separation of powers."

The case resulting in the benchmark decision involved a Gwinnett County man charged with the rape and aggravated sodomy of his 17-year-old niece by marriage.

Anthony Juan Powell admitted to performing oral sex on his niece as his pregnant wife slept in the next room. The jury acquitted Powell of rape and aggravated sodomy charges but convicted him of sodomy. He was sentenced to five years in prison but was released on bond pending appeal. Powell now lives in Louisiana, according to his attorney.

This is the second time the Georgia court considered the sodomy statute. The Georgia Supreme Court said the law was constitutional when it ruled on a case in which a man solicited oral sex in 1996.

The U.S. Supreme Court upheld Georgia's sodomy law in 1986, when it said federal privacy rights did not extend to gays having sex.

A lawyer for Powell, Steve Sadow, said courts are increasingly favoring privacy rights in such cases.

"The only thing that has changed is an evolution of thought and the recognition of privacy interests. In weighing rights of individuals versus the state, they are leaning toward rights of the individual," Sadow said.

Attorney Stephen Scarborough, who represents Lambda Legal Defense and Education Fund Inc., a gay rights group, suggested that the anti-sodomy law was upheld in previous cases because it involved same-sex activity.

The American Civil Liberties Union praised the court's decision.

"We have worked very hard for many years to overturn the sodomy law," said Debbie Seagraves, executive director for the ACLU's Georgia Chapter. "This is a step in the direction where the state no longer has the right to police our bedrooms."

The ruling also received praise from Kevin Clark, co-chair of First City Network, a non-profit gay advocacy group in Savannah.

"I think that is wonderful news, awesomely good news," he said. "Certainly from the gay community's perspective, that is absolutely wonderful."

If Johnson pushes for a new state law to criminalize sodomy, "I would certainly lead efforts to thwart that process," Clark added.

State government reporters Lawrence Viele and James Salzer can reached at (404) 589-8424.

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