Last edited: February 13, 2005

High Noon for Gay Rights: Supreme Court Decision Will Set Course

An upcoming Supreme Court decision could decide the future of gay rights in Virginia.

Fredericksburg Free Lance-Star, June 17, 2003
P. O. Box 617, Fredericksburg, VA 22401
Fax: 703-373-8450

By Dyana Mason, executive director of Equality Virginia

RICHMOND—The Supreme Court’s upcoming decision in Lawrence v. Texas, which challenges Texas’ “homosexual conduct” law, will have a significant impact on the gay, lesbian, bisexual, and transgender community in Virginia, one of the 13 remaining states with a “crimes against nature” (sodomy) law still on the books. The court now has a chance to find all such laws unconstitutional and remove the government once and for all from everyone’s private lives.

In the Texas case, police acting on a false tip about an armed intruder burst into the home of John Lawrence and found him engaged in consensual sexual activities with Tyrone Garner. Instead of continuing to look for the “armed intruder,” the police chose to arrest Lawrence and Garner for violating Texas’ sodomy law, which only applied to gay and lesbian couples.

Such discrimination and harassment brands countless numbers of gay and lesbian Americans as criminals without ever being charged, much less convicted, of any crime.

Virginia’s law, although it technically applies to gay or straight people, is today used almost solely as justification for discrimination and harassment of gays and lesbians in many aspects of our public lives.

In the late 1990s, Linda Kaufman and her partner’s application to adopt a child was canceled when the Virginia Department of Social Services, citing the sodomy law, suggested that they were “unsuitable candidates.” It was only after a prolonged lawsuit against the department that they reached a settlement allowing them to pursue adoption.

This assumption of guilt applied to gay or lesbian people was also made clear recently, when Del. Robert F. McDonnell, R-Virginia Beach, and Del. Bradley P. Marrs, R-Chesterfield, indicated that possible homosexual conduct may be grounds for not re-appointing Judge Verbena Askew to her seat in the Virginia Courts.

Del. McDonnell, chair of the House Courts of Justice Committee was quoted as saying, “There is certain homosexual conduct that is in violation of the law; I’m not telling you I would disqualify a judge per se if he said he was gay. I’m talking about their actions.” A week later, Del. Marrs, made similar comments.

Unfortunately, Virginia also has a long history of unfairly applying the “crimes against nature” or sodomy law to trample the rights of gays and lesbians.

In one example from 1995, Bottoms v. Bottoms, the Virginia Supreme Court found Sharon Bottoms unfit to retain custody of her child, in large part because she was gay and living with her partner. The court found that “conduct inherent in lesbianism is punishable as a Class 6 felony” and custody was given to Sharon’s mother.

As director of the only non-partisan gay, lesbian, bisexual and transgender organization statewide, I most commonly receive requests from parents who are terrified of losing custody of their children. All I can do is provide referrals for gay-friendly attorneys.

As we work in Virginia to overcome these challenges, the U.S. Supreme Court has the chance now to say once and for all that this type of discrimination is wrong.

America has changed since 1986, when Bowers v. Hardwick decided that sodomy laws were constitutional. Now, down from 24, only 13 have such laws on their books—and that number no longer even includes Georgia, where Bowers originated.

The gay and lesbian community has matured and has become a more diverse and vibrant part of the mainstream since then. Dozens of openly gay elected officials serve their communities with pride; gays and lesbians are having or adopting children in record numbers and a majority of Americans now say they know someone who is gay or lesbian.

The Supreme Court will likely make one of three decisions and Equality Virginia is working to prepare the community for any outcome. The court may 1) uphold the Texas law, allowing all remaining 13 laws to stand; 2) find only the same-sex specific laws in Texas, Oklahoma, Kansas, and Missouri unconstitutional by violating the right to equal protection; or 3) extend the right to privacy to include adult consensual sexual behavior.

Either we will build on the positive momentum from a historic victory in the Supreme Court and the striking down of Virginia law, or work to repeal the “crimes against nature” law.

We call on the gay, lesbian, bisexual, and transgender community and all those across the state who are against discrimination and the trampling of people’s rights to speak out and have their voices heard. Right now it is up to the Supreme Court—after that it will be up to us.

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