Last edited: December 05, 2004

An Ugly Litmus Test for the State’s Judiciary

The Virginian-Pilot, January 17, 2003
P.O. Box 449, Norfolk, VA 23501-0449
Fax: 757 446-2051

When Del. Robert McDonnell of Virginia Beach was asked by a reporter on Tuesday if he had ever violated Virginia’s crimes-against-nature law, he evasively replied, "Not that I can recall."

McDonnell’s discomfort in divulging such intimate details of his private life was obvious in his response. But if he refuses to give a straight answer, he has no business asking others holding public office to do the same.

At issue is the reappointment of Newport News Circuit Judge Verbena Askew, a successful jurist and former city attorney. She was instrumental in founding Newport News’ drug court, and, according to the Daily Press, is the first black female circuit court judge in the state. But Askew has been dogged by rumors that she may have harassed a female court employee, an allegation that has created a whisper campaign about her lifestyle.

McDonnell is chairman of the House Courts of Justice Committee, which decides who will preside over the state’s courts.

Virginia’s Judicial Inquiry and Review Commission, which oversees judges’ conduct, has told McDonnell that complaints against Askew are unfounded.

Now McDonnell has publicly indicated that the state’s crimes-against-nature statute—which forbids all oral and anal sex regardless of gender—should be used as a factor in deciding a judge’s fitness for the bench.

Judges must meet many educational and professional qualifications for appointment. Sexual lifestyle tests should not be among them. If McDonnell insists on knowing whether Askew has ever violated the crimes-against-nature law, he must also demand answers from all other potential jurists, male and female.

"If we start bringing every judicial candidate in and asking them about their sexual orientation, we’ll make a mockery out of the law," McDonnell said. But in order for the law to be fairly and equally applied, that’s exactly what McDonnell would have to do. Why raise the issue only in Askew’s case? When has any jurist—male or female—been asked these kinds of questions?

The General Assembly should have the guts to get rid of a law so antiquated by contemporary social norms as to have been drained of any authority years ago. And with no purpose other than intimidating homosexuals, the law harkens back to the shameful days of Jim Crow, when other Americans were humiliated by legalized bigotry.

McDonnell can say that he’s merely advocating for Virginia’s laws to be upheld. Technically, that’s true. But his comments cast a harsh light on his judgment.

It is disturbing that McDonnell, as chairman of a powerful committee, has elevated dogma over common sense, and legalism over tolerance, fair play and an individual’s right to privacy.

If the General Assembly doesn’t have the courage to kill this law, then let it lie. But let it lie for everyone.

[Home] [Editorial] [Virginia]