An Ugly Litmus Test for the State’s Judiciary
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
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
"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
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
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
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.
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