Lambda Legal Defense and Education Fund Monday helped defeat the Georgia sodomy statute, in a victory for the right to privacy under the state’s Constitution and against a notorious national symbol of anti-gay hostility and discrimination.
In Powell v. The State, the Georgia Supreme Court overturned the state law, which made oral and anal sex between consenting adults, gay and non-gay, a felony punishable by up to 20 years in prison. As Lambda argued in its friend-of-the-court brief, the Court held that the 182-year-old sodomy law violates the right to privacy guaranteed by Georgia’s Constitution.
Ruling 6 to 1, the Court said, “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….We conclude that such activity is at the heart of the Georgia Constitution’s protection of the right of privacy.”
The majority opinion was authored by Chief Justice Robert Benham, and a concurring opinion was written by Justice Leah J. Sears. A lone dissent was written by Justice George H. Carley.
Like Georgia’s, the sodomy laws of 13 other states ban oral and anal sex for both same- and different-sex couples. Five states ban sex only between same-sex partners.
Lambda currently is in courts in Texas and Arkansas challenging bans on private sex between consenting adults of the same sex. Lambda recently helped to overturn same-sex bans in Tennessee, Kentucky, and Montana.
Georgia’s state sodomy law was notorious because the United States Supreme Court upheld it in the destructive 1986 ruling, Bowers v. Hardwick. Michael Hardwick, who has since died, was arrested in his own bedroom, but the High Court rejected arguments that his federal right to privacy had been violated.
Hardwick is often considered the lesbian and gay civil rights movement’s biggest setback because it has been widely misused to justify myriad anti-gay actions around the country, including employment discrimination and unfair custody rulings against lesbian and gay parents.
“We’re elated,” said Staff Attorney Stephen Scarborough of Lambda’s Southern Regional Office in Atlanta of Monday’s state court action. “The state Supreme Court has freed all the people in Georgia from this despicable law, and it also has sent a bright signal to the rest of the country that the government does not belong in the bedrooms of consenting adults — gay or straight,” Scarborough said.
“The Court should be congratulated for upholding the right to privacy in Georgia,” he said, adding that the court refused to create special exceptions for heterosexuals and recognized the sodomy law as an intrusive abuse of state power for both gay and non-gay people.
In 1997, Anthony San Juan Powell testified while being tried on a rape charge that the sex he had with a woman in his home was consensual and included oral sex. The jury acquitted him of rape but convicted him of violating the state’s sodomy law. He was sentenced to five years in prison.
Lambda’s amicus brief in the case argued that criminal penalties for consensual sex in a private place violated the Georgia Constitution’s guarantee of privacy. The brief also urged the court to strike down the law in its entirety rather than retain penalties for homosexual sex only.
“It’s ironic that the Court struck down the sodomy statute with these facts — which do not refelect the typical way that consensual sodomy laws actually are used,” said Legal Director Beatrice Dohrn from Lambda’s New York headquarters.
She added, “Although only rarely enforced, these laws are routinely invoked against lesbians and gay men who lose their jobs, professional licenses, homes, even custody of their own children based on assumptions that, as gay people, we are criminals. This is the case even though, like Georgia’s, most sodomy laws are supposed to apply to everyone.”
In the Hardwick case, Lambda coordinated amicus filings from around the country and also submitted its own friend-of-the-court brief urging the U.S. Supreme Court to overturn the Georgia sodomy law.
But the High Court, ignoring the Georgia law’s prohibition against heterosexual sodomy and citing a history of moral disdain for certain private, consensual sexual acts said, “The [U.S.] Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.”
In the Powell case, however, the Georgia Supreme Court noted, “[T]he ‘right to be let alone’ guaranteed by the Georgia Constitution is far more extensive than the right of privacy protected by the U.S. Constitution.”
The state’s highest court added, “While many believe that acts of sodomy, even those involving consenting adults, are morally reprehensible, this repugnance alone does not create a compelling justification for state regulation of the activity.”
Said Dohrn, “In Lambda’s litigation, particularly before the U.S. Supreme Court’s 1996 ruling in Romer v. Evans that upheld federal equal protection for lesbians and gay men, we routinely came up against Hardwick, even in situations where it clearly was not meant to apply. While the Georgia ruling doesn’t overturn Hardwick, it is yet another powerful tool in our struggle to be recognized not as criminals, but as citizens deserving equal treatment under the law.”
Lambda’s brief in Powell was joined by the Georgia Association of Criminal Defense Lawyers, Stonewall Bar Association, Georgia Equality Foundation, and Atlanta Executive Network.
Now celebrating its 25th anniversary, Lambda is the nation’s oldest and largest legal organization serving lesbians, gay men, and people with HIV and AIDS.