Last edited: February 14, 2005

Virginia Sodomy Law Invoked to Block Judge’s Reappointment

The Advocate, January 16, 2003

In what Lambda Legal Defense and Education Fund, a New York-based gay rights group, called "another deeply disturbing example" of how sodomy laws are used to discriminate against gay people, a Virginia state legislator who oversees a committee responsible for reappointing judges across the state says he opposes reappointing a local judge to a second term if she is a lesbian, because she would therefore be violating the state’s sodomy law. A legislative committee will decide whether to reappoint the judge on Friday. The decision comes just one day after Lambda announced plans to file a brief urging the U.S. Supreme Court to overturn Texas’s sodomy law, a case that also could effectively strike down sodomy laws in Virginia and 11 other states.

"There is certain homosexual conduct that is in violation of the law," said Robert F. McDonnell, a Republican member of Virginia’s house of delegates and chairman of the legislature’s house courts of justice committee. "It certainly raises some questions about the qualifications to serve as a judge." Virginia’s sodomy law criminalizes oral and anal sex between straight and gay couples—including private, consensual intimacy between adults—but is almost exclusively used to discriminate against lesbians and gay men, Lambda officials say. McDonnell was referring to Newport News, Va., circuit judge Verbena Askew, whose reappointment will be considered in a hearing set for Friday.

"This is yet another deeply disturbing example of how these laws are used to justify discrimination against gay people," said Ruth Harlow, Lambda’s legal director and the lead attorney on the Supreme Court case challenging the Texas law, on Wednesday. "These laws are widely used to deny gay people jobs, custody of their children, and the fair and equal treatment we’re all guaranteed in this country."

Askew is one of 60 judges statewide up for reappointment this year, but she is the only one facing a challenge in the legislature. The legislature appoints judges to eight-year terms, and reappointments are rarely challenged. Askew is the first female African-American circuit judge in Virginia history. In November a legislative committee canceled her formal interview, which starts the reappointment process. Since then, members of the committee have raised a wide range of questions about whether Askew is fit to be reappointed, including whether she treats male defendants too harshly, whether she is "rude" to people in her courtroom, why the city settled a woman’s sexual harassment complaint against her a couple of years ago, and now, with McDonnell’s comments Tuesday, whether she is in violation of the state’s sodomy law. A number of witnesses as well as Askew herself are expected to testify Friday before the legislative committee votes on her reappointment. Askew has declined to comment publicly—including any public comment regarding her sexual orientation—citing ethical rules that prohibit judges from speaking out about specific cases or their reappointments.

"Judge Askew should be assessed just like the other 59 judges up for reappointment this year," Harlow said. "If there are questions about her professional conduct, those should be investigated and addressed like they would be with any other judge. Antigay discrimination has no place in the process of deciding who is fit to be a judge, and using Virginia’s sodomy law as a smoke screen doesn’t make that discrimination any more acceptable."

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