Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—November 23

(Andrew Kelly/Reuters)

1998—Purporting to be “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,’” the Georgia supreme court instead shows itself eager to continue its supposed legacy of being a “pioneer in the realm of the right of privacy.” To that end, in Powell v. State, it concocts a state constitutional right to consensual sodomy: as it puts it, the laws may not criminalize “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”

Never mind that the supposed right recognizes, and is limited by, state authority to establish an age of consent (and to bar consent in cases of adult incest), and that the case before it involved a 17-year-old who, as it happens, testified that the defendant—her aunt’s husband—had sodomized her “without her consent and against her will.” (The jury verdict of acquittal on two charges indicates that her testimony did not convince a jury beyond a reasonable doubt).

A concurring justice praises the majority opinion as “inspired”—perhaps, but by what?—and laments that some might criticize the opinion rather than “engag[e] in constructive ideological discourse.”

Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.” He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.”

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