Originally created 11/27/98

Wrong sodomy ruling 112798 - The Augusta Chronicle



Zell Miller did many fine things during his eight years as Georgia's governor but, sad to say, some of his judicial picks helped move Georgia's high court to the political left of the U.S. Supreme Court.

For a perfect example of Peach State justices' portside tilt, simply look at this week's 6-1 ruling striking down the state's anti-sodomy law -- a law the federal High Court held constitutional in 1986.

The U.S. Supreme Court deferred to the Legislature's right to pass laws reflecting a state's values and standards of conduct. The Georgia Supreme Court, however, usurped this authority with its ruling that the sodomy statute violates Georgians' constitutional right to privacy -- a right not perceived when sodomy was litigated in earlier criminal cases; only two years ago, the court upheld the law.

The ruling cannot be appealed, because the Georgia Supreme Court is the ultimate authority on the state's constitution. Even so, Justice George Carley puts the case in proper perspective with his piercing dissent. Some excerpts:

"Today... a majority of this court concludes that our state constitution confers upon the citizens of Georgia a fundamental right to engage in a consensual act which the majority itself concedes... many Georgians find `morally reprehensible.' I believe that, in so holding, the majority not only misconstrues the constitution of Georgia, but also violates the fundamental...principle of separation of powers...

"(The) freedom to violate the criminal law is simply anarchy and, thus, the antithesis of an ordered constitutional system. More importantly, however, the majority cites no authority as support for its adoption of the novel proposition that the constitutionality of a criminal statute is somehow dependent upon whether anyone other than the actual participants...are adversely affected by the proscribed act.

"Presumably, under this new standard, the state can no longer enforce laws against consensual incest, fornication or adultery...(T)he majority has now called into constitutional question any criminal statute which proscribes an act that...does not cause sufficient harm to anyone other than the actual participants. Thus...the constitutionality of criminal laws which forbid the possession and use of certain drugs has suddenly become questionable."

Pro-family lawmakers will be looking for ways to write an anti-homosexual sodomy statute that Georgia's high court will uphold, but given the five-member majority against such a law, it will probably take a constitutional amendment to restore the law -- and that's a long shot, at best.