Phyllis A. Kravitch

“ I thus disagree with the majority's conclusion that the Supreme Court in Doe v. Commonwealth's Attorney might not have reached the merits of the case. Like all summary affirmances, Doe v. Commonwealth's Attorney constitutes a decision on the merits, and, in the words of the Supreme Court, "the lower courts are bound by summary decisions `until such time as the Court informs [them] that [they] are not.'" Hicks v. ”

“ The majority recognizes that a dismissal of certiorari, like a grant or denial of certiorari, normally has no precedential effect whatsoever. [9] Yet it construes the per curiam opinion accompanying the dismissal of certiorari in Uplinger as a "signal" from the Supreme Court that Doe v. Commonwealth's Attorney is no longer good law. ”

“ If I thought that this court were empowered to reach those issues, however, I would agree with the majority that the Georgia sodomy statute should be tested under the "compelling interest" analysis set out in Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973) .
↑ . The Georgia sodomy statute, O.C.G.A. § 16-6-2 (1984) , provides, in pertinent part:
(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.... ”