Last edited: February 14, 2005

Virginia Sodomy Challenge May Expand

Washington Blade, January 7, 2000

By Bill Roundy

An attorney representing nine men who are challenging the Virginia law against sodomy is hoping the appeals court will accept his petition to expand the challenge to include how the law applies to heterosexual couples, too.

The Virginia Court of Appeals agreed Dec. 13 to hear a case challenging the constitutionality of Virginia’s "Crimes Against Nature" law, which prohibits any act of oral or anal sex. The law applies to both heterosexual couples and homosexual couples, but the case was brought by nine Roanoke men charged with soliciting male undercover police officers to commit a felony (sodomy) in that southwestern Virginia city. In two separate decisions, Roanoke judges rejected motions to dismiss charges against the men on the grounds that the sodomy law was unconstitutional. The men appealed those decisions to the Virginia Court of Appeals, the state’s second-highest court.

When Court of Appeals Judge Charles Duff issued the court’s certificate agreeing to hear the men’s appeal, he limited the scope of legal arguments in the case to the manner in which the law was applied to those nine men. The men cannot challenge the law as it applies to everyone in Virginia, the certificate states, as the nine men had hoped to do. Openly Gay attorney Sam Garrison, who will be arguing the case, has filed a challenge to that portion of the judge’s limitation on the appeal.

A motion filed during the earlier Roanoke challenge, charged that the sodomy law was used selectively against Gay men and, thus, violated the right to equal protection. The head of the vice bureau of the Roanoke Police, Lt. Carlisle, denied that charge, testifying that, if officers overheard two people of any gender talking about going home to engage in oral sex, the officers should at least warn the couple that they were committing a felony.

Garrison said he felt that stating that the law was used selectively was not a strong argument, and he chose not to pursue that angle further when appealing the Roanoke judges’ decision. Instead, Garrison is using Carlisle’s testimony to buttress his argument for expanding the scope of the appeal to include others aside from the men that he represents.

"This Court should take the government at its word," Garrison wrote, "that it is willing to use its police power to invade the personal privacy of any and every adult, putting these appellants so much ‘in the same boat’ with all other adult Virginians that any differences among them have no constitutional significance."

"We’ve been trying to get the courts to focus on the indiscriminate breadth of the sodomy statute," he told the Blade. If the court considers the law in its broadest form, Garrison said, it will be more likely to find the law unconstitutional.

For instance, if the law is considered as it applies to everyone, Garrison added, he will be able to argue that the law infringes on the privacy rights of married heterosexual couples who engage in sodomy. It is extremely unlikely that the court would find that the state has the ability to limit the sexual behavior of married couples in the privacy of their bedroom, Garrison said, since that is one of the highest standards of privacy rights.

In park cruising cases involving Gay men, however, arguments based on privacy rights are less likely to find favor with the court, he said.

Aside from the question of privacy, the challenge also asserts that the sodomy law violates the prohibition on government establishments of religion, because, said Garrison, it elevates biblical prohibitions of sodomy to the status of law. He said the sodomy law also constitutes "cruel and unusual punishment" because of its potential five-year prison sentence.

A three-judge panel will hear oral arguments in late March or April on Garrison’s appeal of the technical decision to limit the scope of the case and will probably issue a ruling on that within the next few months.

Regardless of the outcome on the technical issue, the overall challenge to the sodomy law will go on.

"If we don’t like the outcome, we can appeal to the [Virginia] Supreme Court," Garrison noted. "It would be our hope to have the Supreme Court give the last word on this issue."

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