Last edited: December 06, 2004

Georgia High Court Tosses Fornication Law / Network, January 14, 2003

By Ann Rostow

SUMMARY: More than four years after striking the state sodomy law on privacy grounds, the Georgia Supreme Court discarded the state's ban on fornication.

More than four years after striking the state sodomy law on privacy grounds, the Georgia Supreme Court re-emphasized that decision by unanimously discarding the state's ban on fornication.

In a decision released Monday, the justices threw out charges against a 16-year-old boy, who was prosecuted for having sex with his girlfriend, another 16-year-old. Sixteen is the legal age of consent in Georgia, and as the court ruled in 1998, Georgia's Constitution "prohibits the state from criminalizing 'private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.'"

The state had tried to argue that the boy, J.M. in court records, had no expectation of privacy after sneaking into his girlfriend's bedroom at 2 a.m. Further, Georgia lawyers insisted that the state had a compelling interest in regulating the behavior of minors.

But the justices were not swayed. "An invitation to enter another person's private home does not include an implicit condition that the guest surrender his constitutional right to privacy," wrote Chief Justice Norman Fletcher for the court. The couple had obviously tried to ensure their privacy, he continued, by closing the door and putting a stool against it. (These efforts, however, did not prevent the girl's mother from barging in, at which point J.M. made a hasty escape out the window.)

As for the state's interest in protecting minors, the court ruled that the legal age of consent was the only acceptable benchmark in the case. Since the teens were over 16, their status as minors was irrelevant.

Georgia, like many other states, has gone further than the U.S. Supreme Court in extending privacy rights to protect citizens against government intrusion into their consensual sexual activities. Ironically, it was Georgia's sodomy law that the high court upheld in 1986, ruling that guarantees of privacy do not confer "a fundamental right upon homosexuals to engage in sodomy."

Now, the U.S. Supreme Court has an opportunity to reverse its own opinion in Bowers v. Hardwick, as it reviews Lawrence and Garner v. Texas this spring.

Additionally, the court will soon decide whether to accept the case of Matt Limon, a Kansas teen sentenced to 17 years in prison for having consensual sex with another teen-age boy. Under Kansas law, a heterosexual teen caught in the same situation would face no more than a year or so of possible jail time, a discrepancy that arguably violates Limon's right to equal protection.

The ACLU represents J.M., as well as Matt Limon. Lambda Legal Defense is challenging the Texas sodomy law on behalf of John Lawrence and Tyron Garner.

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