Last edited: February 14, 2005

Georgia Court Says Measure Violates of State Constitution

Anti-Sodomy Law Overturned, November 23, 1998

By Rebecca Leung

Georgia’s highest court today threw out the state’s long-standing anti-sodomy law, nearly a decade after the statute survived a Supreme Court challenge.

The state law "manifestly infringes upon a constitutional provision … which guarantees to the citizens of Georgia the right of privacy," Chief Justice Robert Benham wrote for the Georgia Supreme Court, which 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 ruling was hailed by the gay and lesbian community, who say they have disproportionately been the targets of anti-sodomy laws.

"This is not to be seen as a new right to privacy, but a public recognition that this statute is out of step with modern realities," said Stephen Scarborough, staff attorney for the southern regional office of Lambda Legal Defense and Education Fund.

Constitutional Right to Privacy

In a 1986 decision, Bowers vs. Hardwick, the U.S. Supreme Court upheld Georgia’s anti-sodomy law, holding that consenting adults have no constitutional rights 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."

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

In the current case, Powell was charged with raping and sodomizing his niece, but was convicted 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.

Justice George H. Carley was the lone dissenter. He wrote that the majority had "usurped the legislative authority of the General Assembly to establish the public policy of the state."

Challenges Filed, Laws Overturned

As recently as the early 1960s, all 50 states had some sort of criminal law that outlawed consensual sodomy. Now, only 13 other states have sodomy laws that make consensual oral and anal sex between heterosexual or gay couples a crime, while five other states have anti-sodomy laws that apply only to homosexuals.

Challenges to state statutes have already been filed in Maryland, Texas and Arkansas. And states like Tennessee, Montana and Rhode Island recently overturned state anti-sodomy laws.

Civil rights advocates say the Georgia decision could have a great effect on future challenges to sodomy laws in other states.

"This is indeed a landmark decision given that it was Georgia which first instigated the U.S. Supreme Court case, which everyone who supports sodomy laws points to for validation of their beliefs," said Kate Monteiro, president of the Rhode Island Alliance for Lesbian and Gay Civil Rights, which this year led a successful drive to repeal Rhode Island’s 112-year-old anti-sodomy statute.

"I hope and expect that state legislators and judges around the country will look at other states that they don’t consider progressive or sophisticated as they are — like Georgia and Rhode Island — and say if Georgia, home of Bowers vs. Hardwick can do this, so can we."

The Associated Press contributed to this report.

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