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*338late social policy on the basis of our own personal inclinations.” Evans v. Abney, 396 U. S. 435, 447 (90 SC 628, 24 LE2d 634) (1970). The issue in this case is not whether private and consensual acts of sodomy should be legal or illegal in Georgia, because that question has already been resolved by the General Assembly. Under the unambiguous provisions of OCGA § 16-6-2 (a), commission of an act of sodomy is against the criminal law of this state, and performance of such an act in private between consenting adults is not exempted from that statutory prohibition. Therefore, the only issue presented for decision is whether the General Assembly has the constitutional authority to prohibit such conduct. This Court is not authorized to impede the State’s unrestricted enforcement of OCGA § 16-6-2 (a) unless that statute manifestly impinges upon a constitutional right of adults to perform consensual sodomy in private. See Bohannon v. State, 269 Ga. 130, 131 (2) (497 SE2d 552) (1998). Clearly, Powell has no right under the federal constitution to engage in the act proscribed by OCGA § 16-6-2 (a), since there is no fundamental right under the Constitution of the United States to engage in consensual sodomy. “Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights.” Bowers v. Hardwick, 478 U. S. 186, 192 (106 SC 2841, 92 LE2d 140) (1986). Today, however, a majority of this Court concludes that our state constitution does confer upon the citizens of Georgia a fundamental right to engage in a consensual act which the majority itself concedes, as it must, that many Georgians find “morally reprehensible.” I believe that, in so holding, the majority not only misconstrues the Constitution of Georgia, but that it also violates the fundamental constitutional principle of separation of powers. It is my opinion that there is no state constitutional impediment to the General Assembly’s enactment of OCGA § 16-6-2 (a) and that, by holding otherwise, the Court has exceeded the limits of its judicial authority and usurped the legislative power “to enact laws to promote the public health, safety, morals, and welfare of its citizens.” Christensen v. State, 266 Ga. 474, 476 (2) (a) (468 SE2d 188) (1996). Therefore, the only perceptible unconstitutionality in this case is that which is evidenced by the majority’s determination, acting as social engineers rather than as jurists, to elevate their notion of individual “liberty” over the collective wisdom of the people’s elected representatives that a proscription on sodomy, consensual or otherwise, is “in furtherance of the moral welfare of the public.” Christensen v. State, supra at 476 (2) (a). Therefore, I respectfully, but vigorously, dissent to the holding that OCGA § 16-6-2 (a) is unconstitutional.
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*339tutions of some other states, the Georgia Constitution contains no express recognition of a right to privacy. Compare Gryczan v. State, 942 P2d 112, 121 (Mont. 1997). That right stems entirely from this Court’s holding in Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 SE 68) (1905). Pavesich does not hold that the citizens of this state have an immutable constitutional right to engage in a private consensual act of sodomy or in any other conduct which constitutes a crime pursuant to an enactment of the General Assembly. It merely defines the right of privacy generally, as an implicit element of the “liberty” guaranteed to Georgia citizens under the Due Process Clause of the state constitution. Pavesich, supra at 197. In accordance with Pavesich, supra at 195, an individual’s liberty and, hence, his privacy is not completely unrestricted, but is subject to “ ‘such restraints as are necessary for the common welfare.’ ” Thus, a citizen of Georgia does not have the right “to violate the valid regulations of the organized government under which he lives.” Pavesich, supra at 194. At the time Pavesich was decided, one such valid regulation was a criminal statute of this state which prohibited a citizen’s commission of an act of sodomy, without regard to whether that act was consensual and private. Herring v. State, 119 Ga. 709, 720 (2) (46 SE 876) (1904). Indeed, the original statutory law of Georgia made it a crime to engage in an act of sodomy, and the punishment upon conviction was “ ‘imprisonment at labor in the penitentiary for and during the natural life of the person convicted of this de[te] stable crime.’ [Cit.]” Warren v. State, 255 Ga. 151, 157 (2) (336 SE2d 221) (1985). Moreover, sodomy “ ‘was a felony by the ancient common law.’ ” Herring v. State, supra at 720 (2). See also Bowers v. Hardwick, supra at 192; Anno., 20 ALR4th 1009, 1014 § 2 [a]. Thus, even assuming that the general constitutional right to privacy recognized by Pavesich was broad enough to encompass participation in certain private consensual sexual acts, it nevertheless is undeniable that sodomy could not have been included among those protected acts, since that sexual practice was expressly made criminal by the statutory law of this state.
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*340ognition of the principle that Georgia citizens also have the responsibility to comply with this state’s criminal law. Thus, unlike the majority, I believe that Pavesich is clear-cut authority for the proposition that a violation of the criminal law of this state can never be justified as an element of the “liberty” guaranteed by the Due Process Clause of this state’s constitution. In my opinion, freedom to violate the criminal law is simply anarchy and, thus, the antithesis of an ordered constitutional system.
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, 266 Ga. 657, 658 (2) (469 SE2d 22) (1996). Because Pavesich clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes and because there has been no constitutional change which would authorize Georgia citizens to engage in private and consensual sodomy, it is clear that Powell’s attack on the constitutionality of OCGA § 16-6-2 (a) is without merit. The Due Process Clause of the Georgia Constitution does not afford the citizens of this state the right to engage in private consensual conduct which has been proscribed by a criminal law enacted by our General Assembly. See State v. Lopes, 660 A2d 707, 710 (R.I. 1995); State v. Bateman, 547 P2d 6, 10 (V) (Ariz. 1976); Everette v. State, 465 SW2d 162 (Tex. Crim. App. 1971); 81 CJS, Sodomy, § 3, p. 648.
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
*341the 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, 63 Ga. App. 819, 822 (12 SE2d 388) (1940); Pruett v. State, 463 SW2d 191, 193 (Tex. Crim. App. 1970). If, however, the act takes place in a public place or in the presence of a non-condoning non-participant, it can be subject to prosecution as a non-private act. Christensen, supra. If the act takes place in private and one of the participants files criminal charges against the other, it can be subject to prosecution as a non-consensual act. The prosecution against Powell certainly was not initiated because he was alleged to have engaged in a private and consensual act of sodomy. To the contrary, he was prosecuted only because the victim alleged that he committed an act of forcible sodomy against her. There is no contention that the evidence at trial would not have authorized a finding that Powell’s private act of sodomy was non-consensual. Although the jury found Powell guilty of consensual sodomy, the fact nevertheless remains that the prosecution was initiated and pursued only because one of the participants initially alleged and subsequently testified under oath that she did not consent to the act of sodomy.
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 *342no analytical or conceptual distinction between the crimes of sodomy and incest when committed by consenting adults. Neither a public performance of the proscribed sexual act, an exchange of money nor the use of force is an element of either offense as defined by the General Assembly. See OCGA §§ 16-6-2; 16-6-22. The only conclusion to be drawn is that the majority simply has decided that legislative proscription of the right of adults to engage in consensual sodomy is now politically incorrect and unconstitutional, but that it still is politically correct and constitutional for the General Assembly to prohibit adult relatives from engaging in consensual sexual intercourse. The majority opinion will have anomalous results. For example, it remains criminal for a father and his adult daughter or stepdaughter to engage in consensual sexual intercourse, but they may now lawfully perform consensual acts of anal and oral sodomy.
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, 713 SW2d 508, 511-512 (Mo. 1986). The only justification given by the majority for concluding that OCGA § 16-6-2 (a) cannot be upheld as a constitutional exercise of the State’s police power to proscribe immoral conduct is that, in Georgia, the right to engage in consen*343sual and private sodomy, although legislatively determined to be morally reprehensible, is guaranteed under our constitution. As previously demonstrated, however, this constitutional “right” to engage in sodomy has been manufactured out of whole cloth by the majority’s misconstruction of Pavesich. A constitutional right to privacy obviously cannot include the right to engage in private conduct which was condemned as criminal at the very time that the constitution was ratified. No reasonable Georgian would consider that the effect of voting to ratify a general constitutional guarantee of “liberty” would be to divest his or her elected legislators of the right to continue the specific statutory proscription against sodomy or any other criminal act. To the contrary, any reasonable citizen of this state would consider that he or she thereby was retaining the liberty to make such determinations for themselves through their elected legislators. The majority, having simply invented the constitutional right to engage in sodomy in the first instance, then relies upon that fictional right as support for its ultimate conclusion that the General Assembly has no constitutional authority to proscribe that conduct. A reviewing court should strive “to assure itself and the public that announcing rights not readily identifiable in [a constitution's text involves much more than the imposition of the Justices’ own choice of values.” Bowers v. Hardwick, supra at 191. Given the utter lack of support for the purported constitutional right to engage in sodomy, I can only conclude that the majority has chosen to substitute its own public policy determination for that of the General Assembly.
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, 199 Ga. 685, 690-691 (2) (35 SE2d 144) (1945). “It is the prerogative of the judiciary to determine what the law is, and the responsibility of the legislature to declare what the law shall be. [Cit.]” Pearle Optical of Monroeville v. State Bd. of Examiners in Optometry, 219 Ga. 364, 373 (2) (133 SE2d 374) (1963). Thus, this Court’s authority extends only to the correction of errors of law, and we have no legislative powers or functions. Jacobs v. State ofGa., 200 Ga. 440, 445 (37 SE2d 187) (1946). “[T]he legislature, and not the courts, is empowered by the Constitution to decide public policy, and to implement that policy by enacting laws; and the courts are bound to follow such laws if constitutional.” Commonwealth Inv. Co. v. Frye, 219 Ga. 498, 499 (2) (134 SE2d 39) (1963). In exercising the judicial' authority to determine the constitutionality of statutes duly enacted by our General Assembly, it is our solemn duty “not to pronounce against them, except in a clear case, and to make every intendment *344possible in favor of their constitutionality.” Gormley v. Taylor, 44 Ga. 76, 77 (2) (1871).
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, 221 Ga. 190, 204 (5) (c) (144 SE2d 103) (1965), rev’d on other grounds, 385 U. S. 538 (87 SC 639, 17 LE2d 593) (1967). According to the majority, OCGA § 16-6-2 (a) is unconstitutional for the entirely erroneous reason that, by ratifying the Constitution of Georgia, this state’s voters implicitly guaranteed the right of its citizens to commit an act which its legislators nevertheless have expressly determined should continue to be prohibited. Retaining the long-standing proscription on sodomy may or may not be good public policy, but it is a public policy determination which, as a matter of constitutional law, only the General Assembly can make. State v. Bateman, supra at 10 (V); Note, Doe and Dronenburg: Sodomy Statutes are Constitutional, 26 Wm. & Mary L. Rev. 645 (1985). Thus, in Christensen v. State, supra at 477 (3), we held that “[t]he 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.” Christensen v. State, supra at 477 (3). Unfortunately, as of today, that is no longer the law of this state. By holding that the constitutional guarantee of “liberty” precludes the General Assembly from enacting an express ban on the commission of consensual private acts of sodomy, the Court has usurped the legislative authority of the General Assembly to establish the public policy of this 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. 200 Ga. 323, 331 (3) (37 SE2d 322) (1946). As such, our constitution should not be subject to judicial amendment so as to express whatever a majority of this Court happens to conclude at any given time is the more enlightened viewpoint on a particular controversial *345issue. If our constitution can be judicially amended in such a manner, that constitutes government by this Court, rather than government through a constitutional system of which this Court is a separate and equal branch. In accordance with today’s opinion, any and all disaffected groups who are unable to obtain legislative redress need only convince a majority of this court that what they seek is an implicit “right” protected by the general guarantee of “liberty” afforded by the Due Process Clause of the Georgia Constitution. Contrary to this analysis, however, our constitution wisely provides for separation of powers, and authorizes the General Assembly to make the public policy determinations in this state. Under our constitution, therefore, the public policy of Georgia on the practice of sodomy is a matter within the exclusive jurisdiction of the legislature'. Accordingly, we should continue to “decline to usurp that which is the power of the legislature.” Christensen v. State, supra at 477 (3). By this dissent, I am not opining that what the majority has wrought today should or should not be done or can or cannot be done. I am saying simply that this Court should not, and indeed constitutionally cannot, do it.
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, 346 NE2d 591, 596 (Ind. 1976); Carter v. State, 500 SW2d 368, 371 (Ark. 1973); People v. Hurd, 85 Cal. Rptr. 718, 726 (Cal. App. 1970). In the exercise of its police power, the General Assembly has determined that the long-recognized ban on sodomy should remain in place. That ban applies only to acts, not to persons or groups.
[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, 504 SW2d 324, 326 (Mo. App. 1974). Because the majority’s discovery of a constitutional right to engage in sodomy notwithstanding this legislative ban is based upon a serious misinter*346pretation of the Constitution of Georgia and is completely contrary to the constitutional principle of separation of powers, I dissent.
Decided November 23, 1998 — Reconsideration denied December 17,1998. Brenda J. Bernstein, Steven H. Sadow, for appellant. Daniel J. Porter, District Attorney, Pamela D. South, Assistant District Attorney, for appellee. Thurbert E. Baker, Attorney General, Michael E. Hobbs, Counsel to the Attorney General, Stephen R. Scarborough, Kelly S. Brown, amici curiae.