Last edited: February 27, 2005

Not Exactly a Valentine

The Southern Illinoisan, February 20, 2005

By James Kilpatrick

In a week awash with the sentiments of St. Valentine, it may seem unseemly to comment upon a recent opinion in the Supreme Court of Virginia. The case, alas, had nothing to do with sentiment. As M. Chirac is wont to say, au contraire.

The case involved a suit brought by Maggie against her lover Charles. I have changed the litigants’ names to protect the infected. The case number is 040804, decided by unanimous opinion on Jan. 14. Justice Elizabeth B. Lacy spoke for the Virginia court.

The facts are not seriously in dispute. Charles and Maggie, unmarried adults, entered into an intimate relationship in October 2001. For many months they engaged in “unprotected sexual conduct.” That relationship ended rudely in November 2003. That was when Maggie noticed that telltale blisters had begun to form. It was a serious case of herpes.

Given today’s litigious society, Maggie naturally took appropriate measures. Instead of shooting him, she sued him. In her complaint, she alleged that Charles knew that he had the kind of herpes that may be sexually transmitted, that he knew the virus was contagious, and that he never told her. She sought both compensatory and punitive damages.

Charles filed a demurrer. The bounder asserted that Maggie’s injuries were her own fault: She had voluntarily and repeatedly engaged in an act that was illegal in Virginia, to wit, fornication between unmarried persons. The state law, Va. Code Sect. 18.2-344, makes it a Class A misdemeanor “for any person, not being married, voluntarily to have sexual intercourse with any other person.” It is hornbook law that recovery will not lie in cases of injury resulting from illegal activity.

The trial court sustained his demurrer, but Virginia’s Supreme Court reversed. Whatever weight might once have attached to laws forbidding adult fornication, said Justice Lacy, that weight vanished with the U.S. Supreme Court’s 6-3 decision two years ago in the homosexual case of Lawrence v. Texas. With that decision, the sexual activity between Maggie and Charles became a constitutionally protected liberty. It no longer matters that a majority of Virginia voters may view unmarried fornication as immoral. That is not “a sufficient reason for upholding a law prohibiting the practice.”

Justice Lacy emphasized that the court’s opinion does not affect the Commonwealth’s police power regarding regulation of public fornication, prostitution and other such offenses. These laws remain in effect. But a law that “improperly abridges a personal relationship that is within the liberty interest of persons to choose” cannot be sustained. The Constitution says that no state may deprive any person of “liberty” without due process of law. Voluntary private fornication between consenting adults has become a form of constitutional liberty. As Cato was wont to say, “quod erat demonstrandum.”

This may not have been exactly what the framers of the 14th Amendment intended—but that was 1868, and this is now. The Virginia court’s opinion in the case of Charles and Maggie takes us one more mile along a course denounced by Justice Antonin Scalia in the Lawrence case in June 2003. That was the case in which the high court, speaking through Justice Anthony Kennedy, nullified all state laws punishing private homosexuality.

In a scathing dissenting opinion, joined by Justice Thomas and Chief Justice Rehnquist, Scalia said his brethren had put into question every law against “adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.” He scoffed at Justice Kennedy’s assertion of “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

Justice Kennedy, swept away on the tides of his own eloquence, had praised an “emerging awareness of liberty” that develops as time goes by. The framers of the Constitution, he mused, had not grasped “the components of liberty in its manifold possibilities.” Later generations understand that some laws “once thought to be necessary and proper,” such as the Texas statute, “now serve only to oppress.”

Getting back to Maggie’s suit against the bounder: Now that Charlie’s demurrer has been cast aside, he may have to stand trial on the merits of her case. Ultimately we may learn a little more about the manifold possibilities of liberty. Maggie could testify about one of those possibilities. Its awareness emerged early in November 2003.

  • James Kilpatrick writes for Creators Syndicate.

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