Christensen v. State

468 S.E.2d 188, 266 Ga. 474, 96 Fulton County D. Rep. 884, 1996 Ga. LEXIS 115

• Court: Supreme Court of Georgia
• Decided: March 11, 1996
• Docket: S95A1586
• Status: Published

Opinions

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 Georgia.

The Rockdale County Sheriffs 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 SC 2781, 61 LE2d 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, noncommercial 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 SE 68) (1905). And we have determined that certain provisions of the 1983 Georgia Constitution confer greater rights and benefits than the federal constitution.⁵ See Grissom v. Gleason, 262 Ga. 374, 376, n. 1 (418 SE2d 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 SE2d 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, 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, 23 LE2d 430) (1969).” State of Ga. v. Davis, 246 Ga. 761, 762 (1) (272 SE2d 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 SC 247, 63 LE 470) (1919). “[T]he commission of a felony is a substantive evil which our legislature has a right to prevent.” Davis, supra at 762. 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 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 SE2d 220) (1957), “before an act of a coordinate 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. 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; Sears and Hunstein, JJ., who dissent.

1 OCGA § 16-6-15 (a) provides:

A person commits the offense of solicitation of sodomy when he solicits another to perform or submit to an act of sodomy. Except as provided in subsection (b) of this Code section [which pertains to solicitation of a person under the age of 17 to perform sodomy for money], a person convicted of solicitation of sodomy shall be punished as for a misdemeanor.

2 Defendant’s actual statement to the officer, as reflected' on the tape-recording played for the jury, was: “I’m just looking for a blow job.” See Anderson v. State, 142 Ga. App. 282 (235 SE2d 675) (1977) (such language sufficient to support a conviction for solicitation of sodomy).

3 Standing requirements dictate that “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably he applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U. S. 601, 610 (93 SC 2908, 37 LE2d 830) (1973). However, an exception has been carved out in the area of the First Amendment. Id. at 611. We thus consider defendant’s freedom of expression challenge as it pertains to all adult citizens.

4 Art. I, Sec. I, Par. I provides: “No person shall be deprived of life, liberty, or property except by due process of law.”

5 In Bowers v. Hardwick, 478 U. S. 186 (106 SC 2841, 92 LE2d 140) (1986), the court determined that due process rights protected by the Fifth and Fourteenth Amendments to the federal constitution do not “extend a fundamental right to homosexuals to engage in acts of consensual sodomy. 478 U. S. at 192. The court also rejected the notion that, “any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription. . . .” 478 U. S. at 191.

6 See Barnes v. Glen Theatre, 501 U. S. 560 (111 SC 2456, 115 LE2d 504) (1991), in which the protection of “societal order and morality” was identified as a “substantial government interest.”