Last edited: January 23, 2005

Virginia Enters the 20th Century

The Augusta Free Press, January 20, 2005

Guest View
By Richard Sincere

When the Virginia Supreme Court ruled in the otherwise obscure case of Martin v. Ziherl on Jan. 14, it belatedly brought the Commonwealth into the 20th century.

How so? The court overturned a law dating to the early 19th century, which had not been enforced since 1847, banning sexual relations between two unmarried, consenting adults. It recognized that human beings living in Virginia have a liberty interest in protecting their private relationships from governmental interference.

While the case at hand addressed “fornication” performed by a heterosexual couple, the court made clear that, should a similar case come before it, involving two persons of the same sex and the state’s sodomy law (also known as the Crimes Against Nature, or CAN, statute), it would overturn that law, too.

The Virginia court relied almost exclusively in its reasoning on the United States Supreme Court’s 2003 case, Lawrence v. Texas, which said a Texas law prohibiting sexual relations between persons of the same gender was unconstitutional.

Referring to the earlier federal case, Justice Elizabeth Lacy, writing for the court, stated: “ ... this same liberty interest is invoked in this case when two unmarried adults make the choice to engage in the intimate sexual conduct proscribed by Code (Section) 18.2-344. Thus, as in Lawrence, the Commonwealth’s interests do not warrant such encroachment on personal liberty.”

In so doing, the court swept away the rationale for a raft of laws that infringe on the rights of individuals—gay or straight, single or married—to engage in private, consensual, sexual conduct.

(The ruling does not affect, the court said, “the Commonwealth’s police power regarding regulation of public fornication, prostitution, or other such crimes.”)

The General Assembly has, on numerous occasions, considered legislation that would have had the same effect—repealing archaic laws that have no place in a liberty-loving society. Each time the state legislators had an opportunity to modernize the Virginia code’s sections dealing with sexual conduct, they let it pass by. Thus it was up to the state Supreme Court to act.

Lest certain ideologues accuse the court of “judicial activism” and of being out of sync with public opinion, two points are in order:

First, the court’s opinion was squarely in line with precedent set by the U.S. Supreme Court. Thus, it respected the principle of stare decisis.

(According to Bouvier’s Law Dictionary, “stare decisis” means “To abide or adhere to decided cases,” adding in explanation, “It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from.”)

Second, the court’s ruling reflects public opinion rather than contradicts it.

In January 2001, Rasmussen Research, an independent polling organization, conducted a statewide survey of Virginia voters to determine knowledge and attitudes about Virginia’s CAN statute and related issues. Among its findings were:

  • When asked, “Should it be against the law for an unmarried man and an unmarried woman to have sex in the state of Virginia?” ... 71.1 percent of respondents answered “no,” including 67.4 percent of self-identified Republicans (those voters one would most expect to answer Yes).

  • When asked, “Should it be against the law for a married couple to have oral sex in the privacy of their own home?” ... 81.7 percent said “no” (including 78.9 percent of Republicans).

  • When asked, “Currently, according to Virginia law, it is illegal for consenting adults to have oral sex in the state of Virginia; a proposal has been made to eliminate the Virginia law; should the Virginia law be eliminated?” ... 65.2 percent answered “yes,” including 61.4 percent of Republicans.

General Assembly members have often maintained, off the record, that they are wary of changing Virginia’s laws regulating private sexual conduct, because they think they will have hell to pay on Election Day if they do so. But they have nothing to fear. The Rasmussen poll also asked how voters would cast their ballots for legislators who support repeal of such laws. Overall, 82.9 percent of Virginians said that they would either be more likely to vote for such legislators, or it would have no impact on their vote.

Now, some might argue that a four-year-old opinion survey may not accurately reflect the current attitudes of Virginia voters. That may be true. But it would be up to the naysayers to provide concrete, scientifically valid evidence that proves it wrong.

The court’s decision is cause for celebration by all Virginians, as it has removed one more layer of government intrusiveness from our lives. We are freer today than we were on Jan. 13, unencumbered by unconstitutional laws that strike at the heart of our most personal liberties.

At the dawn of the 21st century, Virginia is finally reconciled to the 20th.

  • Richard Sincere is author of The Politics of Sentiment. His political and cultural commentary can be found at

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