Virginia Enters the 20th Century
Augusta Free Press, January 20, 2005
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
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
First, the court’s opinion was squarely in line with
precedent set by the U.S. Supreme Court. Thus, it respected the principle of
(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
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, “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.
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