The Virginia Supreme Court Strikes Down the State’s Fornication Law,
Indicating that Other States’ Antiquated Laws Will Fall if Challenged
By Joanna Grossman, firstname.lastname@example.org
Jan. 25, 2005
In June 2003, in Lawrence
v. Texas, the United States Supreme Court struck down Texas’ ban on
same-sex sodomy, holding that such a law is an unconstitutional infringement
upon an individual’s right to privacy.
Last week, the Virginia Supreme Court ruled that, given
the precedent of Lawrence, the state’s criminal ban on fornication could not
survive. Thus, in Martin v. Ziherl, the Virginia court invalidated the law,
which, although it dated back nearly 200 years, had not been enforced
criminally against a consenting adult since the middle of the nineteenth
As this long history and lack of enforcement indicates,
fornication laws are a relic of a past in which most non-marital sexual
conduct was considered criminal behavior. Yet laws still persist on the books
in about twenty percent of the states.
Virginia was right to invalidate such an antiquated law,
and other fornication laws, if challenged in court, are very likely to be
invalidated as well.
Martin v. Ziherl: The Case Testing Virginia’s
In 2003, Muguet Martin filed a complaint against her
ex-lover, Kristopher Ziherl, for allegedly transmitting genital herpes to her
through sexual intercourse. She alleged that he knew he was infected with the
incurable disease when the couple engaged in unprotected sexual conduct, and
failed to inform her of his condition. She filed a tort suit, seeking damages
for negligence, battery, and intentional infliction of emotional distress.
Ziherl filed a demurrer—a legal pleading that says even
if the facts alleged are true, there is no legal theory to permit recovery. He
cited a 1990 case, Zysk v. Zysk, in which the Virginia Supreme Court had
refused to allow recovery for injuries suffered while participating in an
“illegal” activity. And he also cited Virginia’s law banning
fornication—defined as sexual intercourse by an unmarried person with any
other person. (Fornication under Virginia law is a misdemeanor and a violator
could incur a fine of up to $250.)
Since fornication is a crime in Virginia, Ziherl
argued—a crime that both he and Martin were committing—she should not be
able to recover in tort for any injuries flowing therefrom. Since she was
participating in an illegal activity, he contended, she should not be able to
recover damages for her injuries—any more than, say, a bank robber could
recover if his colleague broke his nose in the course of their joint bank
The trial judge agreed with Ziherl and granted the
demurrer. But on appeal, the Virginia Supreme Court reversed, and let
Martin’s case go forward.
The Holding of Lawrence: A Right of Adults to Engage
in Private Sexual Conduct
Before considering how the two relevant legal
sources—the Zysk case and the Virginia criminal statute—interacted, the
Virginia Court first asked a more basic question: Is the Virginia criminal
statute constitutional? In the end, the court answered no—based on the
Supreme Court precedent of Lawrence v. Texas.
Specifically, Lawrence concerned the validity of a law
criminalizing same-sex sodomy. But in striking the law down, the U.S. Supreme
Court spoke eloquently—and more generally—about the nature of the interest
infringed by that statute.
Indeed, the Supreme Court framed the case, quite broadly,
as asking “whether the petitioners were free as adults to engage in the
private conduct [at issue] in the exercise of their liberty under the Due
Process Clause of the Fourteenth Amendment to the Constitution.”
In a famous 1986 opinion, Bowers
v. Hardwick, the Court had upheld Georgia’s criminal sodomy law. In
Lawrence, the Court reversed course—stating that Bowers was wrong when
decided, and still wrong seventeen years later.
Bowers—the Court made clear—had incorrectly permitted
states the right to interfere with intimate relationships, something that
substantive due process principles do not allow.
(The doctrine of “substantive due process,” when
applied to the States, derives from the Due Process Clause contained in the
Fourteenth Amendment. Under the Due Process clause, certain state actions that
deprive persons of life, liberty or property must be accompanied by certain
processes; for instance, some deprivations of property cannot occur without
prior notice and a hearing. But for certain state actions, the Court has
ruled, no amount of process is enough. Here, the Court has said, the way to
honor due process is, substantively, to forbid the deprivation.)
The Lawrence court concluded, instead, that the
constitution protects the right of adult individuals to conduct consensual
personal relationships “in the confines of their homes and their own private
lives.” This right includes the “overt expression” of the relationship
in “intimate conduct.”
The majority in Lawrence paid homage to the dissent in
Bowers by adopting Justice Stevens’ analysis as the controlling law. In his
Bowers dissent, Justice Stevens had emphasized two points.
First, Stevens argued, morality—even a longstanding
view that a practice is immoral—is not a sufficient justification to uphold
a law prohibiting particular conduct.
Second, he argued, individual decisions by married and
unmarried persons about “intimacies of their physical relationship, even
when not intended to produce offspring” are a form of “liberty” under
the Due Process Clause.
Applying Lawrence’s Holding to the Virginia
The court in Ziherl held that the principles stated in
Lawrence were applicable to the Virginia fornication statute—and
necessitated that the statute be struck down as unconstitutional.
To begin, the court noted that the protected
“intimacies” first referred to by Justice Stevens—and later embraced by
the majority in Lawrence—must include “the specific act of intercourse . .
. between two unmarried persons.” In other words, the very act defined as a
crime by the Virginia statute was protected as part of the right to liberty in
The Virginia court considered the “public reasons”
Ziherl offered to justify the fornication ban—to protect the public health
and to encourage that children be born into marital families. (Ironically, the
interest in protecting the public health is served both by upholding the ban
on fornication—and thus deterring nonmarital sexual activity—and striking
it down—and thus deterring the negligent transmission of venereal disease by
imposing legal liability for such conduct.) But, under Lawrence, such reasons
are clearly insufficient to justify a governmental intrusion on personal
liberty of this kind.
Although fundamental rights usually trigger the highest
level of judicial scrutiny, the Supreme Court in Lawrence concluded that a ban
on same-sex sodomy could not survive even the lowest form of constitutional
review. The Court held that the “Texas statute furthers no legitimate state
interest which can justify its intrusion into the personal and private life of
the individual.” Virginia had no greater interest in banning fornication
than Texas did in banning sodomy.
The court thus struck down the Virginia law, and sent the
case back for trial of the original tort claim. Since the law had been struck
down, the conduct by Ziherl and Martin was no longer illegal. Thus, Martin’s
suit against Ziherl was no longer barred by the participation of the plaintiff
in “illegal” activity. Rather than engaging, together, in a crime, the two
had engaged, together, in an exercise of one component of individual
liberty—the liberty of consenting adults to engage in private sexual
Thus, while Muguet Martin, unfortunately, is left with a
case of genital herpes, she is also left with a lawsuit—one that raises the
possibility that she can recover damages from the man who she alleges infected
her. Since the mid-1980s, courts have been willing to apply conventional tort
principles to permit recovery based on knowing exposure of a sexual partner to
the herpes virus.
The Likely Fate of Fornication Laws in Other States
Will other states’ fornication laws meet the same fate
as Virginia’s? To see why the answer is yes, a bit of background is useful.
A decade ago, more than one-third of the states still had
criminal bans on fornication. The laws were seldom enforced, but remained on
the books nonetheless.
Fornication laws did have their day, though. According to
historian Cornelia Dayton (as cited in an article by law professor Anne
Coughlin), fornication comprised the single largest part of the criminal
docket in New England from 1690 to 1760.
And, much more recently, many states actively enforced
criminal bans on fornication during the anti-vice era of the 1920s and 1930s.
So-called “crimes against morality” including fornication, adultery,
bastardy, and abandonment occupied a notable portion of most local criminal
dockets. (This history is described in greater detail in a prior column I
wrote for this site.)
Interestingly, six months before Lawrence was decided,
the Georgia Supreme Court struck down that state’s fornication law. It did
so on similar grounds to those that would subsequently be elucidated by the
U.S. Supreme Court.
Though not usually thought of as a legally progressive
state, Georgia was slightly ahead of the curve, at least among the states with
fornication laws, on this issue. Later, in the wake of Lawrence, legislatures
in other jurisdictions such as Arizona and the District of Columbia repealed
their unused fornication laws.
In Utah, a challenge to the state’s fornication and
sodomy laws was filed the day after the opinion in Lawrence was handed down.
But the court dismissed it for lack of standing—that is, lack of a plaintiff
who had suffered actual injury—since the individual raising the challenge
had neither been prosecuted nor threatened with prosecution under either law.
The Attorney General filed a statement, though, indicating that the law would
not be enforced against consenting adults.
With Virginia’s law now invalidated, only 12 or so
states today continue to criminalize fornication. Their laws, however, are
equally doomed, under Lawrence—for just the reasons the Virginia court gave.
And rightly so: As I’ve argued in a previous column,
such laws simply cannot be defended under the modern interpretation of the Due
Process Clause. As the Virginia court said in Ziherl, there is no “relevant
distinction” between a law banning sodomy—such as the one that Lawrence
struck down—and a law banning fornication. Both “improperly abridge a
personal relationship that is within the liberty interest of persons to
(As a side note, Virginia still has an anti-sodomy law.
But the law is certainly invalid. Not only the U.S. Supreme Court’s opinion
in Lawrence, but also the opinion of the state’s own high court in Ziherl,
Lawrence’s Only Certain Implication Is to Invalidate
Sodomy and Fornication Laws
What about other laws regulating private, consensual,
sexual conduct? Justice Scalia’s dissent in Lawrence predicted the demise of
all such laws—including “state laws against bigamy, same-sex marriage,
adult incest, prostitution, masturbation, adultery, fornication, bestiality,
and obscenity”. He certainly overstated Lawrence’s intended scope, and he
probably overstated its eventual reach as well.
In truth, laws against sodomy and fornication are the
only sex laws that do not implicate any of the boundaries the Supreme Court
tried to limn in Lawrence. The Court strongly suggested that laws affecting
the institution of marriage, involving minors, or involving sexual activities
that are conducted in public or for commercial purposes would not be within
the bounds of the “private relationships” protected by the Fourteenth
Amendment—and thus will not be struck down under a Lawrence-like analysis.
Putting sodomy and fornication laws aside, adultery laws
are the most vulnerable to challenge. In the twenty-some states that still
criminalize adultery, the law goes largely if not totally unenforced—but
occasionally, a possible test case does arise.
Virginia, like many other states, also outlaws adultery,
and, just a year ago, a man was criminally charged with adultery (a case
I’ve written about in an earlier column). In that case, the defendant pled
guilty (although the charges were withdrawn pending appeal) rather than
challenging the law. But any future prosecution would certainly meet with a
Although adultery does affect the institution of
marriage, it is not clear that a criminal ban on the practice does much to
protect marriages generally or in particular cases. Many spouses cheat, few
probably realize that it is criminal behavior, and almost none are charged
under applicable laws. And to the extent an adulterous affair is conducted in
private, it may well fall within the bounds of the private, intimate
relationships with which the government is not supposed to interfere.
Bigamy, in contrast, more directly jeopardize the
traditional institution of marriage, and more than morality is in play.
Recordkeeping by states, the safety and well-being of children, and the
stability of the family unit are all potentially implicated by bigamous
Those factors don’t make bigamy laws immune from
challenge, but they provide some defense to a Lawrence analysis. Bigamy also
finds no widespread tradition of tolerance, either in our country’s recent
or more distant past.
Prostitution laws are probably safe. The potential for
public health hazards and the exploitation of women provide such laws with
plausible justifications. Moreover, the decision to sell sex to a stranger (or
buy it, for that matter) is unlikely to be considered by the courts to be one
of the deeply intimate choices adults make in private relationships.
That leaves us with same-sex marriage—and Lawrence is
only one of the relevant factors in predicting the survival or demise of such
bans. Only time will tell their fate.
Joanna Grossman, a FindLaw
columnist, is a professor of law at Hofstra University, currently visiting at
the University of North Carolina School of Law. Her columns on family law,
trusts and estates, and discrimination, including sex discrimination and
sexual harassment, may be found in the archive of her columns on this site.
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