Lead Opinion
Anthony San Juan Powell was charged in an indictment with rape and aggravated sodomy in connection with sexual conduct involving him and his wife’s 17-year-old niece in Powell’s apartment. The niece testified that appellant had sexual intercourse with her and engaged in an act of cunnilingus without her consent and against her will. Powell testified and admitted he performed the acts with the consent of the complainant. In light of Powell’s testimony, the trial court included in its jury charge instructions on the law of sodomy. The jury acquitted Powell of the rape and aggravated sodomy charges and found him guilty of sodomy, thereby establishing that the State did not prove beyond a reasonable doubt that the act was committed “with force and against the will” of the niece. See OCGA § 16-6-2 (a). Powell brings this appeal contending the statute criminalizing acts of sodomy committed by adults without force in private is an unconstitutional intrusion on the right of privacy guaranteed him by the Georgia Constitution. Powell also contends that the trial court erred when it offered the jury the opportunity to consider the unindicted charge of sodomy by sua sporite instructing the jury on the law of sodomy.
1. In keeping with the well-established principle that this Court will not decide a constitutional question if the appeal can be decided
2. Appellant next contends that the trial court erred when, without request by the State or appellant, it instructed the jury on the law of sodomy and permitted the factfinder to return a verdict on that included charge.
In State v. Stonaker,
3. Lastly, we address appellant’s constitutional challenge to OCGA § 16-6-2 (a). In so doing, we are mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation “manifestly infringes upon a constitutional provision or violates the rights of the people. . . . [Cit.]” Miller v. State,
The right of privacy has a long and distinguished history in Georgia. In 1905, this Court expressly recognized that Georgia citizens have a “liberty of privacy” guaranteed by the Georgia constitutional provision which declares that no person shall be deprived of liberty except by due process of law. Pavesich v. New England Life Ins. Co.,
In Pavesich, the Court found the right of privacy to be “ancient law,” with “its foundation in the instincts of nature [,]” derived from “the Roman’s conception of justice” and natural law, making it immutable and absolute. Id. at 194. The Court described the liberty interest derived from natural law as “embrac[ing] the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common good.” Id. at 195. “Liberty” includes “the right to live as one will, so long as that will does not interfere with the rights of another or of the public” (id. at 196), and the individual is “entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has the right to arbitrarily take away from him his liberty.” Id. at 197. The Pavesich Court further recognized that the
In the ensuing years since Pavesich was decided and Georgia’s right of privacy recognized, the Georgia appellate courts have expounded on the right of privacy, describing it as protection for the individual from unnecessary public scrutiny (Athens Observer v. Anderson,
While Georgia citizens’ right to privacy is far-reaching, that is not to say that the individual’s right to privacy is without limitation. The Pavesich court recognized that the right could be waived by the individual (
Today, we are faced with whether the constitutional right of privacy screens from governmental interference a non-commercial sexual act that occurs without force in a private home between persons legally capable of consenting to the act. While Pavesich and its progeny do not set out the full scope of the right of privacy in connection with sexual behavior, it is clear that unforced sexual behavior conducted in private between adults is covered by the principles espoused in Pavesich since such behavior between adults in private is recognized as a private matter by “[a]ny person whose intellect is in a normal condition. . . .” Pavesich, supra at 194. Adults who “withdraw from the public gaze” (id. at 196) to engage in private, unforced sexual behavior are exercising a right “embraced within the right of personal liberty.” Id. We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than unforced, private, adult sexual activity. See Gryczan v. State,
Having determined that appellant’s behavior falls within the area protected by the right of privacy, we next examine whether the
Citing Christensen, supra,
The State also maintains that the furtherance of “social moral
In undertaking the judiciary’s constitutional duty, it is not the prerogative of members of the judiciary to base decisions on their personal notions of morality. Indeed, if we were called upon to pass upon the propriety of the conduct herein involved, we would not condone it. Rather, the judiciary is charged with the task of examining a legislative enactment when it is alleged to impinge upon the freedoms and guarantees contained in the Georgia Bill of Rights and the U. S. Constitution, and scrutinizing the law, the interests it promotes, and the means by which it seeks to achieve those interests, to ensure that the law meets constitutional standards. 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. Post v. State,
We conclude that OCGA § 16-6-2, insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent, “manifestly infringes upon a constitutional provision” (Miller v. State, supra,
Judgment reversed.
Notes
Privacy rights protected by the U. S. Constitution are not at issue in this case. Thus, not applicable to this discussion are Bowers v. Hardwick,
The Court saw the right of persons to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures as an “implied recognition of the existence of a right of privacy. . . .” Id. at 198-199.
It is a well-recognized principle that a state court is free to interpret its state constitution in any way that does not violate principles of federal law, and thereby grant individuals more rights than those provided by the U. S. Constitution. Nowak, Rotunda & Young, Constitutional Law, § 1.6 (c), p. 21 (3rd ed.). Thus, a state court may interpret a state constitutional provision as affording more protection to citizens than have the federal courts in interpreting a parallel provision of the federal constitution. See Creamer v. State,
Georgia is not alone in providing its citizens with a broader right of privacy than that provided by the federal constitution. Appellate courts in Montana (Gryczan v. State,
In King v. State,
As authority for the position that the State need only establish that legislation alleged to intrude upon the right of privacy has a “reasonable relation to a legitimate state purpose!,]” the Christensen plurality cited Blincoe v. State,
We are reminded of what Justice Oliver Wendell Holmes said in a dissent in Lochner v. New York,
Concurrence Opinion
concurring.
In broad terms, the dissent urges that once the legislature criminalizes any activity, courts are forbidden from passing on the “wisdom” of such laws.
This nation was founded upon a great moral precept — that all persons are entitled to the free exercise of their liberty, which:
[E]mbraces the right of a [person] to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. Liberty includes the right to live as one will, so long as that will does not interfere with the rights of another or of the public. . . . All are entitled to liberty of choice as to his manner of life, and neither an individual nor the public has a right to arbitrarily take away from him his liberty.12
The individual’s right to freely exercise his or her liberty is not dependent upon whether the majority believes such exercise to be moral, dishonorable, or wrong. Simply because something is beyond the pale of “majoritarian morality” does not place it beyond the scope of constitutional protection. To allow the moral indignation of a majority (or, even worse, a loud and/or radical minority) to justify criminalizing private consensual conduct would be a strike against freedoms paid for and preserved by our forefathers. Majority opinion should never dictate a free society’s willingness to battle for the protection of its citizens’ liberties. To allow such a thing would, in and of itself, be an immoral and insulting affront to our constitutional democracy.
There will, of course, be those who will criticize today’s decision, and who may even seek to demonize some members of this Court for their legal analysis. This pattern of personally attacking and pillorying individuals who disagree with certain positions, rather than engaging in constructive ideological discourse with them, has regrettably become more and more prevalent in our culture. Those who would make such personal attacks, however, do not fully appreciate that all of my colleagues, those who agree with the majority as well as those who dissent, are honorable and decent jurists who struggle to fulfill their constitutional responsibilities to the people of this State.
Today, a majority of this Court fulfills its duties with a clearheaded and courageous decision. I fully concur with it.
Dissent at 344.
Id. at 340.
Majority op. at 335.
As once noted by United States Supreme Court Justice Hugo Black, it is a commonly-held misconception that “the Constitution prohibits that which [the majority] thinks should be prohibited, and permits that which they think should be permitted.” Newsweek, Dec. 9, 1968 at p. 52.
West Virginia Bd. of Ed. v. Barnette,
Pavesich v. New England Life Ins. Co.,
Dissenting Opinion
dissenting.
“The responsibility of this Court ... is to construe and enforce the Constitution and laws of the [State] as they are and not to legis
The premise of the majority is that the right of privacy guaranteed by the Georgia Constitution grants to the citizens of this state the right to engage in private consensual sodomy. Unlike the consti
Although, as the majority notes, the right of privacy has a long history in Georgia dating from Pavesich, until today this Court has never cited that right as authority for the incongruous proposition that a citizen is at liberty to commit an act which has constituted criminal conduct throughout the even longer history of Georgia as a state and, indeed, throughout the entire history of English common law. In its haste to confer upon Powell a constitutionally protected right to engage in private consensual acts of sodomy, the majority simply seizes upon Pavesich’s general recognition of the guarantee of “liberty” afforded to Georgia citizens under the state constitution, while choosing to ignore completely Pavesich’s equally important rec
Subsequent to the decision in Pavesich, this state’s criminal statutes have maintained an unrestricted proscription on commission of sodomy, whereas our present constitution still contains a Due Process Clause that does not expressly recognize the right of Georgia citizens to engage in that act even in private and with the consent of the participants. The only factor which has changed since Pavesich was decided is the composition of this Court. Thus, the proper question to be resolved in this case is whether this Court will misconstrue Pavesich and reinterpret our state constitution in such a way as to deprive the General Assembly of its authority to prohibit consensual and private acts of sodomy.
It is an established rule of constitutional construction that, where a provision has received a settled judicial interpretation and is then incorporated into a new constitution, it will be presumed to have been retained with the knowledge of the previous construction and the courts will be bound to adhere thereto. [Cit.]
Atlanta Independent School Sys. v. Lane,
This is precisely the issue addressed in Christensen, supra at 476 (2) (a), wherein, less than three years ago, a majority of this Court upheld the constitutionality of the statute, and the plurality opinion held that
*341 the proscription against sodomy is a legitimate and valid exercise of state police power in furtherance of the moral welfare of the public. Our constitution does not deny the legislative branch the right to prohibit such conduct. Accordingly, OCGA § 16-6-2 does not violate the right to privacy under the Georgia Constitution.
See also State v. Bateman, supra at 10 (V). The majority simply dispenses with this holding in Christensen, concluding that, because no third party is harmed by a consensual and private act of sodomy, the General Assembly is without the constitutional authority to proscribe commission of that act. In discounting Christensen, however, the majority appears to be motivated by the erroneous premise that victimless consensual and private acts of sodomy are a realistic target for the State’s enforcement of OCGA § 16-6-2 (a). If an act of sodomy is truly consensual and private, it would be impractical to enforce the statute against the participants, since both would be guilty of the crime of sodomy and, consequently, there would be no victim to file charges and initiate a prosecution. See Perryman v. State,
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 themselves are adversely affected by the proscribed act. Presumably, under this new standard, the State can no longer enforce laws against fornication or adultery. See Bowers v. Hardwick, supra at 195-196. Thankfully, the majority includes incest among those sexual acts which it will continue to permit the State to proscribe as criminal. However, the majority offers
Moreover, the majority does not purport to limit to sexual offenses the application of its new found authority to declare this state’s criminal statutes unconstitutional. By equating the general constitutional guarantee of “liberty” to all Georgia citizens with the right of each individual citizen to engage in self-indulgent but self-contained acts of permissiveness, it appears that the majority has now called into constitutional question any criminal statute which proscribes an act that, at least to the satisfaction of a majority of this Court, does not cause sufficient harm to anyone other than the actual participants. Thus, to give but one example, the constitutionality of criminal laws which forbid the possession and use of certain drugs has suddenly become questionable. See Bowers v. Hardwick, supra at 195.
Until the majority’s advancement of its overly expansive notion of the state constitutional guarantee of “liberty,” there has never been any doubt that the General Assembly, in the exercise of the police power, has the authority to define as crimes the commission of acts which, without regard to the infliction of any other injury, are considered to be immoral. Simply put, commission of what the legislature has determined to be an immoral act, even if consensual and private, is an injury against society itself. “[T]he protection of ‘societal order and morality’ [is] a ‘substantial government interest.’” Christensen, supra at 476 (2) (a), fn. 6. The law “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” Bowers v. Hardwick, supra at 196. See also Christensen v. State, supra at 476 (2) (a); State v. Walsh,
In stark and telling contrast to the majority’s analysis, Christensen is based firmly upon the bedrock constitutional principle of separation of powers, which principle is “essential to the very foundation of our system of government” and must “be strictly enforced.” McCutcheon v. Smith,
Legislatures alone determine the wisdom of laws, and courts, despite their belief that the law is unwise, nevertheless are bound by the Constitution to confine their considerations of such laws to their constitutionality alone. Courts possess neither the facilities, the experience, nor the wisdom of legislators to qualify them to pass upon the wisdom of laws.
Sims v. State,
The majority promotes itself as a judicial defender of constitutional rights against the imposition by the General Assembly of those “norms” of “societal morality’ held by most Georgia citizens. The majority should be cautioned, however, that the constitution which it now so readily undertakes to amend by judicial fiat can just as easily be rewritten yet again by any future Court which discovers another constitutional right where none ever existed. The Constitution of Georgia is the original law by which the government of this state was established. Wheeler v. Bd. of Trustees of Fargo Consolidated School Dist.
In the apparent belief that there is safety in numbers, the majority notes that it is not alone in interpreting a state constitutional right of privacy so broadly as to include the right to engage in sodomy. What the majority fails to acknowledge, however, is that most states in which consensual sodomy is no longer a crime achieved that result “by legislative repeal of their laws criminalizing sodomy.” Christensen v. State, supra at 476-477 (3). See also Recent Case, State Constitutions — Homosexual Sodomy, &c., 106 Harv. L. Rev. 1370, 1373, fix. 27 (1993). Thus, the majority should take no comfort in the fact that it has removed Georgia from the rank of those states which have held that the matter is for resolution by the legislature. See, e.g., State v. Bateman, supra at 10 (V); Critchlow v. State,
[I]t is not a proper function for any court to judicially repeal laws on purely sociological considerations — [Powell] would do better to address . . . the General Assembly for it to determine if modern mores require the alteration or expunction of sodomy statutes.
Griffith v. State,