Last edited: February 14, 2005

Being Gay Could Disqualify Judges Virginia Lawmaker Says Newscenter, January 16, 2003

By Doreen Brandt, Washington Bureau

Richmond, Virginia—A powerful Virginia Republican says that engaging in anal or oral sex could disqualify a person from being a judge because both activities violate state law.

Robert F. McDonnell, chairman of the state legislature’s House Courts of Justice Committee, made the comment in reference to a simmering controversy involving the reappointment of Newport News Circuit Judge Verbena Askew.

Virginia’s "crimes against nature" law bans all oral and anal sex regardless of the gender of the parties involved. Repeated attempts to repeal the law have failed and human rights advocates say the law is only used against gays.

McDonnell said that while such behavior alone would not disqualify someone from being a judge, "It certainly raises some questions about the qualifications to serve as a judge."

He said he was not certain if he would probe into Askew’s sex life when she appears this week before a joint meeting of the House and Senate Courts of Justice Committees.

But, it may come up he said when she is questioned about a sexual-harassment complaint by a former subordinate who says Askew propositioned her.

The complaint was settled out of court.

McDonnell said he wants to know whether Askew honestly answered a questionnaire asking if she had ever been "a party to a civil proceeding."

Askew and her accuser signed a separate letter of understanding that specified that neither woman could sue the other or make disparaging remarks about the other. Askew has denied the woman’s accusations throughout.

Nothing in the woman’s complaint suggests that Askew had any physical contact with her or that the judge has ever violated the anti-sodomy law.

McDonnell said the settlement, and Askew’s failure to mention it in a questionnaire submitted to the General Assembly, are more important issues.

McDonnell stressed that he does not know whether Askew is a lesbian.

"I have no direct evidence of her sexual orientation other than innuendo in the community and the sexual-harassment complaint," McDonnell said.

McDonnell’s committee must endorse Askew for reappointment if she is to serve a second eight-year term. Her term expires in March.

Asked by a Virginia newspaper if she had violated the crimes against nature law, Askew refused to comment citing Virginia’s Canons of Judicial Conduct, which forbid judges from talking to the media about specific cases and from publicly campaigning for a judicial appointment or renomination.

McDonnell’s statements drew immediate criticism from gay rights groups.

Michael Adams, an attorney for Lambda Legal, said "[this] is one more example of how these unconstitutional laws are used to mistreat people."

Adams said using the law acts as a pretext for discrimination.

"There is no correlation between a person’s sexual orientation and their ability to be a judge," Adams said.

"The process of choosing judges should be beyond political reproach and beyond discrimination."

The executive director of the Virginia chapter of the American Civil Liberties Union, Kent Willis, said there’s no relationship between a person’s sexual orientation and whether they would make a good judge.

"Whether someone is gay or lesbian should have absolutely no bearing on his ability to be a judge," Willis said.

Willis said the same standard should be applied to married male judges.

"Probably 90 percent of the judges are breaking the law," Willis said.

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