Christensen v. State

Citation266 Ga. 474,468 S.E.2d 188
Decision Date11 March 1996
Docket NumberNo. S95A1586,S95A1586
CourtSupreme Court of Georgia

Page 188

468 S.E.2d 188
266 Ga. 474

No. S95A1586.
Supreme Court of Georgia.
March 11, 1996.
Reconsideration Denied March 28, 1996.

[266 Ga. 490] OCGA § 16-6-15(a); constitutional question. Rockdale County State; Hon. William F. Todd, Jr., Judge.

Gerald R. Weber, American Civil Liberties Union, Atlanta, Jane E. Fahey, Bondurant, Mixson & Elmore, Atlanta, Ralph I. Knowles, Jr., Doffermyre, Shields, Canfield & Knowles, Atlanta, for Christensen.

Cheryl Fisher Custer, Dist. Atty., Conyers, Michael M. Hawkins, Asst. Dist. Atty., Conyers, Michael E. Hobbs, Sr. Asst. Atty. Gen., Michael J. Bowers, Atty. Gen., Department of Law, Atlanta, for the State.

Page 189

Robert B. Remar, Susan M. Garrett, Kirwan, Parks, Chesin & Remar, P.C., Milner S. Ball, Athens, Amici Curiae.

Harry H. Harkins, Jr., Jane Morrison, Beatrice Dohrn and Evan Wolfson, Atlanta, Amicus Appellant.

[266 Ga. 474] THOMPSON, Justice.

L. Chris Christensen was convicted by a jury of solicitation of sodomy, OCGA § 16-6-15(a), 1 a misdemeanor, and he was sentenced to probation for a term of 12 months. He challenges the constitutionality of OCGA § 16-6-15(a), on grounds that it violates his right to privacy and to free speech under the Constitution of the State of [266 Ga. 475] Georgia.

The Rockdale County Sheriff's Department instituted an undercover operation in response to complaints from citizens who reported that they had been solicited for sex and sodomy at a public rest area along Interstate 20. A male undercover officer, fitted with a recording device, observed the male defendant in the picnic area of the rest stop. The officer saw the defendant nod his head, which he (the officer) interpreted as an invitation to approach. The officer exited his vehicle, activated the recorder, and approached the defendant. After brief conversation, the defendant asked, "what are you looking for?" The officer replied that he was open-minded, but careful. The defendant then stated that he was looking for oral sodomy, and he agreed to follow the officer to a nearby motel. While en route, the defendant's vehicle was pulled over and he was arrested. After Miranda warnings were administered, and a waiver executed, the defendant admitted that he was guilty of the charged offense.

1. The evidence was sufficient to support the conviction under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 2

2. Defendant asserts that the statute prohibiting solicitation of sodomy, OCGA § 16-6-15(a), and the sodomy statute which is its essential component, OCGA § 16-6-2, infringe upon the privacy rights and free expression rights of adult citizens to the extent that they criminalize discussions about engaging in private, consensual, non-commercial sodomy. 3

a) Defendant argues that the sodomy law intrudes upon the private sexual conduct of consenting adults and thus violates the right to individual privacy under the due process clause of the Georgia Constitution. 4 This Court has long recognized a right of privacy inherent in the due process clause of the Georgia Constitution, Pavesich v. New England Life Ins. Co., 122 Ga. 190, 199, 50 S.E. 68 (1905). And we have determined that certain provisions of the 1983 Georgia Constitution confer greater rights and benefits than the federal constitution. 5 [266 Ga. 476] See Grissom v.

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Gleason, 262 Ga. 374, 376, n. 1, 418 S.E.2d 27 (1992).

When a privacy interest is implicated, the state must show that the legislation has a "reasonable relation to a legitimate state purpose." Blincoe v. State, 231 Ga. 886, 887(1), 204 S.E.2d 597 (1974). In the exercise of its police power the state has a right to enact laws to promote the public health, safety, morals, and welfare of its citizens. 6 There is also a concomitant interest in curtailing criminal activities wherever they may be committed. As was acknowledged in Bowers v. Hardwick, supra 478 U.S. at 196, 106 S.Ct. at 2846, 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." We hold that 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.

b) Speech which advocates violation of the law is not protected " 'where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' Brandenburg v. Ohio, 395 U.S. 444, 447 (89 SC 1827 [1829], 23 LE2d 430) (1969)." State v. Davis, 246 Ga. 761, 762(1), 272 S.E.2d 721 (1980). This is precisely the type of speech and conduct which are made illegal by the statute prohibiting the solicitation of sodomy. It is without dispute that defendant's words were " 'used in such circumstances and [were] of such a nature as to create a clear and present danger that they will bring about [a violation of the prohibition against sodomy].' " Id., quoting Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919). "[T]he commission of a felony is a substantive evil which our legislature has a right to prevent." Davis, supra at 762, 272 S.E.2d 721. Reasonable prohibitions against soliciting unlawful acts do not violate free speech rights. Because First Amendment protection does not extend to statements made in the solicitation of criminal acts, OCGA § 16-6-15(a) does not reach protected speech.

3. We are certainly cognizant that numerous other states have decriminalized consensual sodomy. But the vast majority of those jurisdictions have done so by legislative repeal of their laws criminalizing[266 Ga. 477] sodomy. While the duty of this Court is to "declare void any act of the legislature that offends the State Constitution," IBM Corp. v. Evans, 213 Ga. 333, 338, 99 S.E.2d 220 (1957), " 'before an act of a co-ordinate department of the government will be declared unconstitutional, the conflict between that act and the fundamental laws must be clear and palpable.' [Cits.]" Blincoe v. State, supra at 888, 204 S.E.2d 597. The right to determine what is harmful to health and morals or what is criminal to the public welfare belongs to the people through their elected representatives. We decline to usurp that which is the power of the legislature.

Judgment affirmed.

All the Justices concur, except FLETCHER, P.J., who concurs specially, HINES, J., who concurs in the judgment only, and SEARS and HUNSTEIN, JJ., who dissent.

FLETCHER, Presiding Justice, concurring specially.

Whatever the extent of the privacy rights under the Georgia constitution of consenting adults in their homes, these rights do not protect solicitation of explicit sexual acts from total strangers in public rest areas. For this reason, I concur in the affirmance of Christensen's conviction under O.C.G.A. § 16-6-15(a).

SEARS, Justice, dissenting.

Throughout history, the impulse of a majority to impose its moral judgments upon the rest of society often has resulted in laws

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that violate the fundamental tenets of our constitutional democracy. Among these tenets are the inalienable right to be left alone so long as one's private conduct does not interfere with the rights of others, and the right to speak freely. These two rights are embodied in the Georgia Constitution's Bill of Rights, which was conceived out of historical experience with tyranny, and stands as a bulwark protecting each citizen. Our body of constitutional law guarantees that the rights of privacy and free speech will not be violated by the State absent the most compelling of reasons. Today, a majority of this Court ignores these constitutional principles and evaluates the guaranteed rights of privacy and free speech under incorrect constitutional standards. Because I cannot sanction this corrosion of rights guaranteed to the citizens of this State, I respectfully dissent.

1. The facts of this case show that the Rockdale County Sheriff's Department was conducting an undercover operation at an interstate highway rest area. Their modus operandi was to approach men at the rest area, and engage them in conversation to see whether they would express an interest in sexual activity. Christensen was at the rest area, and was approached by an undercover officer. The officer began a conversation with Christensen, and asked him whether he was "looking for anything in particular." When Christensen failed to solicit the [266 Ga. 478] officer for sex, the officer began to leave, at which time Christensen stated he was interested in engaging in oral sex. The officer suggested that the two men go to a nearby motel, where he had a room. When Christensen drove past the motel, he was arrested and charged with solicitation of sodomy, in violation of OCGA § 16-6-15(a). There was never any suggestion that the proposed sexual activity between Christensen and the undercover officer would occur any place other than in the privacy of a motel room. The proposed sexual activity was to have occurred between two consenting adults. There was never any offer of or solicitation for money.

At trial, Christensen asserted his right of privacy under the Georgia Constitution in defense of the charge against him. The trial court rejected that constitutional argument by reasoning that the statutes criminalizing sodomy and the solicitation thereof are "based upon morality," and "reflect the ... moral statement of the majority" of Georgia's citizens. According to the trial court, no "further justification" was required in order for Georgia's sodomy statutes "to be constitutional." The trial court also held that the citizens of Georgia, both heterosexual and homosexual, have "no fundamental right to...

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