ATLANTA -- By a vote of 6-1, the Georgia Supreme Court recently struck down the state's 182-year-old sodomy law. The court ruled that the law violated the right to privacy guaranteed by the state's constitution.
"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," said Chief Justice Robert Benham in his majority opinion.
The court also said that while many people may disapprove of sodomy, mere disapproval, even if based on morality, is not enough to overcome the right to privacy.
The American Civil Liberties Union, which had filed a friend-of-the-court brief in the case, hailed the decision as a victory for lesbians and gay men everywhere.
"This wonderful decision brings us one step closer to the day when the government will no longer have the right to police anyone's bedrooms anywhere in the United States," said Debbie Seagraves, Executive Director of the ACLU of Georgia.
In reaching its decision, the court relied on three cases from Kentucky, Tennessee and Montana saying that sodomy laws which applied only to lesbians and gay men were unconstitutional. The ACLU also filed friend-of-the-court briefs in those cases.
Although today's decision involved heterosexual sodomy, the court invalidated the law for everyone, ruling that laws which "criminalize the performance of private, non-commercial acts of sexual intimacy" between consenting adults violate the right to privacy under the state constitution.
"It says something that the courts couldn't see their way to striking down the law in cases involving gay men, but could do so in what began as a rape case," said Matt Coles, Director of the ACLU's Lesbian and Gay Rights Project.
"But no matter what case brought about the decision," Coles added, "this law will never again be used to justify firing a qualified lesbian or a gay man, or to separate parents from their children. And that is a very good thing."
The law invalidated by the court today is the same law that the U.S. Supreme Court upheld in a famous 1986 case, Bowers v. Hardwick, saying it did not violate the federal right to privacy. Just two years ago, the law was upheld in Christensen v. State by the same Georgia Supreme Court that invalidated it today. Both cases were brought by the ACLU.
The Hardwick and Christensen cases both involved gay men. Michael Hardwick was arrested in his own bedroom and Chris Christensen was arrested on his way to a motel room with another man.
Former Georgia Attorney General Michael Bowers also relied on the sodomy law as a justification for firing a lesbian employee who had a private commitment ceremony with her partner. That decision was later upheld by the federal courts in Shahar v. Bowers.
Today's decision involved a man who had been charged with forcing his wife's 17-year-old niece to engage in sodomy. He admitted to having sex with his niece, but claimed she had agreed, an argument the jury apparently accepted when it convicted him of the lesser offense of consensual sodomy.
Sodomy laws are still on the books in 14 states and the Commonwealth of Puerto Rico. The laws, like Georgia's, apply to both same-sex and heterosexual partners. Five states have laws which apply only to lesbians and gay men.
In October, the ACLU won a decision striking down a Maryland law prohibiting oral sex for same-sex couples. The ACLU is also challenging Puerto Rico's law, and is challenging the application of a Mississippi law in a custody case. Laws in Arkansas and Texas are being challenged by Lambda Legal Defense Fund.