Last edited: February 14, 2005


Rulings Afford Sexual Privacy More Legal Protection

The Associated Press, November 27, 1998

By Richard Carelli, Associated Press Writer

WASHINGTON -- A decade-long trend of state court decisions that expand the sexual privacy of consenting adults continued this week when the Georgia Supreme Court struck down that state's ban on sodomy.

"We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from government interference," the Georgia court said in ruling, 6-1, that the state's constitution offers more protection than does the federal Constitution.

Courts in Kentucky, Montana and Tennessee previously had reached the same conclusion in interpreting their respective state constitutions and striking down anti-sodomy laws.

"There is a momentum building for the baseline assumption that this is the epitome of privacy," says Ruth Harlow, managing attorney at the Lambda Legal Defense Fund, a gay-rights group. "This will carry over to other states."

Lou Sheldon, chairman of the Traditional Values Coalition, disapproves. "It seems that the Georgia Supreme Court is willing to allow ... moral indecency to occur all in the name of privacy."

Sodomy laws, which generally ban oral and anal sex, existed in all 50 states as recently as 40 years ago. Today, such laws remain in 18 states.

Thirteen of those states ban consensual sodomy for both homosexual and heterosexual couples. They are Alabama, Arizona, Florida, Idaho, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, North Carolina, South Carolina, Utah and Virginia.

Five states ban homosexual sodomy only. They are Arkansas, Kansas, Oklahoma, Missouri and Texas.

The bans in Arkansas, Louisiana and Texas currently are under attack in state courts.

For gay-rights activists, Georgia's law stood out. It was the subject of a landmark 1986 decision in which the U.S. Supreme Court said consenting adults have no federal constitutional right to private homosexual conduct.

"There's an irony, but the new ruling also reflects a change in the national thinking," says David Smith of the Human Rights Campaign, a gay-rights advocacy group.

The U.S. Constitution does not mention the word "privacy" but the Supreme Court since 1965 has recognized that such a right predates the 1787 document itself.

Some endeavors, such as the decision to marry, have children or practice birth control, have been held to be so private and so "fundamental" that government cannot interfere without some "compelling interest" -- a legal test not easily met.

But in its 1986 decision on Georgia's now-defunct sodomy law, the nation's highest court said private homosexual conduct was not deserving of such protection. "Law is constantly based on notions of morality," the court's 5-4 majority said back then. "And if all laws representing essentially moral choices are to be invalidated ... the courts will be very busy indeed."

When it comes to private sex, they have been ever since.

Richard Carelli covers the Supreme Court and legal issues for The Associated Press.

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