Georgia sodomy statute nullified In reversal, state court classifies private acts as fundamental right

November 24, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

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

The Georgia court became the seventh state tribunal in recent years, including a Baltimore City court last month, to nullify or severely weaken state laws that are designed mainly to outlaw gay and lesbian sex.

Among gay rights issues being fought in courts and legislatures, the challenges to anti-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 anti-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 will provide the basis for courts in other jurisdictions to nullify bans on sodomy.

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 anti-sodomy laws by legislative action.

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

Challenges to anti-sodomy laws are going forward 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 anti-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. "We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than consensual, private, adult sexual activity."

'A bright signal'

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 state 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. But the Georgia case involved a man who was convicted of sodomizing his 17-year-old niece, who was over the age of consent in Georgia. Still, the state court struck down the anti-sodomy law in its entirety, regardless of the gender of the individuals involved.

Gay rights activists contend that such statutes are a problem primarily for homosexuals because the laws are used as a means of discrimination in jobs, housing and health care, as well as used 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. Citing the long history of bans on sodomy and noting that many states retain such laws, the high court split 5-4 in refusing to establish a federal constitutional right of privacy for sex acts between homosexuals.

'Would not condone it'

Yesterday, in striking down the law, the Georgia Supreme Court said that if it were required to rule on "the propriety of the conduct herein involved, [the judges] would not condone it." But, the court said, the issue was not the judges' preferences, or even the moral judgments of the majority of Georgians, but rather whether the law intruded on privacy rights guaranteed by the state constitution.

State officials, in defending the law, had relied on the same court's ruling two years ago that upheld the statute. Rejecting that argument now, the state court said it was upgrading the right of privacy under the state constitution to a fundamental right, more fully protected.

Maryland's law against sodomy originally applied to any such activity. But the Maryland Court of Appeals ruled in 1990 that the state law did not apply to consensual sodomy between adult partners of the opposite sex.

On Oct. 15, Judge Richard T. Rombro of Baltimore City Circuit Court ruled that the law did not apply to sodomy between homosexual partners, either. It would be unconstitutional discrimination, the judge said, to apply the law only to homosexuals.

Appeal of ruling 'unlikely'

Though Rombro did not strike down the law, his ruling, along with the 1990 decision by the state Court of Appeals, means that the Maryland ban applies only to acts of sodomy performed for pay, in a sexual assault or without consent.

Andrew Baida, an assistant Maryland attorney general, said yesterday that Rombro's ruling has not been formally put into effect but that an appeal by the state is "unlikely."

Pub Date: 11/24/98

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