Did Georgia Go Too Far?

As I’ve said on other threads, as Americans, many of our liberties will be decided in the future–quite possibly the near future, in fact, with Pres. Bush’s appointments to the U.S. Supreme Ct. And whatever your positions may be, my only purpose is two-fold: to inform, and to make you think.

Now, on to my point of this thread. Not too long ago, the state of Georgia convicted and sentences a man to 5 yrs. in prison for a consensual sex act, that he did with his wife! The story is a somewhat complicated one, but you can read all about it here.

I shall try not to interject too many of my person beliefs into this thread. But I will say this. It all comes down to the right to privacy. Different people take a different view of the situation. Some people believe that it should be upheld in legislatures, but not the courts. And some people–so-called “moralists”–believe it is found in neither–there is no such thing period. The judge who decided this case in Georgia was such a person. Evidently, so is John Ashcroft..

(Incidentally, this law was eventually repealed.)

(Oh, and BTW, if these hyperlinks don’t work, I shall have to try them again another way. Don’t worry though, I will also add something else relevant if I do that!


Anyways, I guess there are two parts to my debate. One, is this acceptable? Are laws to be enforced, even when they are seemingly unfair? And, 2, is it acceptable to think some of our liberties don’t come from the Constitution? Can other people–like legislators and prosecutors–be entrusted with them? And should they be?



Of course not. The preamble of our constitution contains such phrases as “provide for the common welfare”, but I don’t recall anything about “stick our noses in other people’s business”.

Our liberties come from the constitution. Our rights don’t.

Unfortunately, we don’t have much choice. Other people will always have the power to trample on our rights.

I wonder why this guy didn’t take the fifth.

Isn’t this case the one that made it all the way to the Rehnquist court (which, of course, supported the Georgia statute), only to have the Georgia legislature throw the law out within two years?

It would seem (from this isolated incident) that we are not charging hell-bent-on-election toward intrusive government, but the opposite. The courts are willing to maintain older laws (stare decisis and all that), but the legislatures are not continuing to impose new laws.

(Of course, government may, indeed, be getting more intrusive, but this solitary example leads to an opposite conclusion. Note the 1990 date on the article.)

I remember this case, it stemed from an ugly, ugly divorce. The wife decided on, nay, insisted on pressing charges against her husband using an antiquated sodomy law that prohibited oral sex (it’s ironic that she was the recipient). The D.A. was backed in to a corner: the husband did it, and the law is on the books. The courts were likewise tied to the outcome. They interpret the law, and the law was clear. Open and shut case due to testimony in the divorce.

It splashed across the news because this law hadn’t been prosecuted in anybody’s living memory. Georgians thought “he’s charged with going down on his wife?! Huh?!” It was akin to somebody being charged with tieing their horse too close to a post office.

It was an isolated incident, and the husband would never have been charged if not for his soon to be ex-wife’s angry insistence. Shortly thereafter, the legislature repealed the antiquated law to make sure this didn’t happen again. I agree with tomndebb that this particular case shows a government trying to extricate itself from personal affairs, rather than insert itself into them.

As to the questions in the OP:

1.) Laws should be enforced, even when they are considered “unfair”. We can not have local sheriffs and D.A.'s disobeying their local, sate, and federal governments in their personal convictions regarding what is “right”. It is not their job to make the laws, but to enforce them.

2.) It is perfectly acceptable to think that some liberties don’t come from the constitution. In fact, it is imperative that we do so. The constitution intentionally left the door open for ammendments and new ideas. It is a living document meant to be adapted to the changing times - not to dictate to those times. This flexibility is meant to insure liberty.

Well, actually I am surprised no one brought this up yet. But there is a simple reason why the judge did not have to pursue this case. It is something very important to our legal system and probably as old too. It is called discretion–that is the legal term, BTW.

EVERYONE at every point in the legal process has the ability to exercise this–from the arresting officer to the judge and probably the “victim” too. In fact, if someone is bugging a judge to prosecute and he doesn’t want to, he can simply render a verdict of “Nolle Prosequi”–meaning, he refuses to prosecute. I guess at that point the aggrieved party would have to appeal it–or just take it to another judge–unsure.

And this works well for all the arcane laws across the U.S. Some laws they just don’t bother to enforce anymore. In an adjacent city to me, it is written that whoever crosses an intersection in his horseless carriage, must stop, get out of the carriage and fire three shots into the air with his shot gun! (Of course modern weapons possession laws would probably preempt this law, but you get my point.)

So… With sodomy laws, we get more of a selective enforcement though. Police will rarely arrest and judges rarely pursue a case if the action was consensual, private and between legal adults. Of course the case in my OP shows the problem with that–some judges (and police) are still thinking the old-fashioned way. Plus you have to remember that sodomy makes you a sex offender whether you do it with your 35 yr. old lover–or a 10 yr. old choir boy. So for this reason and others, many gays just want these old “buggery” laws done away with altogether.

Regardless of the perceived failures in judgment by the D.A., the judge, or even (if I am correct in my guess) the Supreme Court, this case does not stand as an example of increasing government intrusion in our lives. I am not even arguing that government intrusion is not on the increase, only that this case, based on ancient (not recent) law, a law repealed fairly swiftly by the legislature, does not provide a good example of an increase in intrusion.

Forgive me again for sidetracking the discussion a little bit, but alot of people don’t realize what the U.S. Supreme Ct. actually said in the infamous Bowers v. Hardwick [1986]. They concentrated mainly on the issue of homosexual sodomy. Heterosexual sodomy, they implied, was O.K. But sodomy within the confines of marriage is always protected under the U.S. Constitution’s guarantee of privacy. This is one of the things that makes gays so angry. You can use the above link to find out more, or you can use this one.


It is the duty of everyone, LEO or not, to oppose every immoral law. Part of living in a democracy is that everyone has veto powers over the laws. For instance, people that opposed the Vietnam War went to prison rather than fight it. The Capitol is not some magic building, that everything that comes out of it is right and moral. “I’m just doing my job” is a ridiculous excuse.

BTW, Jim B. you should keep in mind that overuse of caps, bolding, and italics can get in the way of your argument.

Ryan, however, those that are in LAW ENFORCEMENT should enforce the law. We, citizens, may break it in order to say that we feel it immoral, and we feel that government should give us that right that is missing (after all, rights come from the government). However, the enforcement mechanism has to follow the laws, I would think. I know there are plenty of antiquated laws that really aren’t followed much, but that leads to cases such as this when those laws are brought up again and no one that could change the law realized it because no one was enforcing it for so long.

A bill at the Georgia House of Representatives dated late 1999 aims at repealing the law mentioned in the OP. In following quote; underlined sections are to be read as struck through, i.e. to be deleted. Bold text is the new text and italics mark additions to the original. You can get the whole text by following the link in the quote title.

I’d say that’s pretty fair; ‘sodomy away as long as your partner agrees’ should stand pretty close to the moral standards of Western society. Hence Georgia might have gone too far in the case mentioned in the OP, but they are making amends it would seem.

12 years of age for consent to sodomy, though…I thought the time of child marriages was over even in Georgia :rolleyes:


Let’s get a few things straight before we debate a non-issue.

This law was not defeated by a legislative repeal. Rather, it was ruled unconstitutional by the Georgia Supreme Court.

You may recall that this same law was previously upheld by the US Supreme Court in the 1986 decision Bowers v. Hardwick. In other words, the Supreme Court has already ruled that this anti-sodomy law did not violate the U.S. Constitution.

In a subsequent case (in fact, the case referenced in the OP if my memory serves me), the conviction was appealed to the Georgia Supreme Court, where it was argued that the Georgia Constitution provided greater protections than the US Constitution, and that the sodomy law was unconstitutional under Georgia law. (This despite the very similar language used in both the US and Georgia constitutions.) Thus did a liberal-minded Georgia Supreme Court side-step Rehnquist & Co. to strike down the law.

The 1999 legislative bill referenced by Sparc was just a house-cleaning measure to remove language that had already been declared unenforceable by the courts.

Slight correction. It was still the “Burger Court” when the Bowers decision came down, though Rehnquist participated in the decision.

Not if the law is immoral. A person that enforces an immoral law is himself immoral.

Also, these cases are a perfect example of why I oppose Megan’s Law type policies and not allowing felons to vote or own guns.

Then the person should resign for law enforcement, because he is not doing his job and breaking the contract he signed when he signed on to do that job.