Last edited: January 04, 2005

Virginia’s Attorney General Blocks ‘Friends of The Court’ Briefs

2 Groups Ask to Join Fight Over Sodomy Law

Roanoke Times, May 25, 2000
P. O. Box 2491, Roanoke, VA 24010
Fax 703-981-3204

Roanoke police used the law in 1998 to crack down on "cruising," or the seeking of sex by gay men, in Wasena Park.

By Laurence Hammack

In fighting to preserve a law that makes consensual oral sex a felony, Virginia’s attorney general has temporarily blocked two organizations from supporting 10 gay men challenging the law.

The men, convicted of seeking sex from undercover police officers in a Roanoke park, are arguing on appeal that the state law forbidding oral sex is an archaic invasion of privacy.

That view is shared by the Log Cabin Republican Club of Northern Virginia, a GOP gay-rights group, and The Liberty Project, a Washington D.C.-based libertarian organization. Both groups sought to file "friends of the court" arguments on behalf of the men this month with the Virginia Court of Appeals.

Sam Garrison, a Roanoke attorney who represents the men, consented. Attorney General Mark Earley’s office did not.

The refusal was "a bit peculiar," said William Kocol, an Alexandria attorney who represents the Log Cabin Republicans. "In my opinion, it’s a matter of professional courtesy" to allow such a filing, he said. "But I can’t speak for the attorney general or say what was on his mind."

Randy Davis, deputy press secretary for Earley, declined to elaborate because the case is pending in court.

As for the law against sodomy – defined as a "crime against nature" that includes oral and anal sex – Davis said: "The attorney general by statute upholds the laws of the commonwealth, and that is what he will do in this case."

Although all 50 states once had such laws, Virginia is one of 17 where they remain on the books. Virginia’s law makes no distinction between homosexual or heterosexual sex, and applies to both public sex acts and ones committed in the privacy of a couple’s bedroom.

Roanoke police used the law in 1998 to crack down on "cruising," or the seeking of sex by gay men who frequent public places such as parks. After having conversations with officers posing as cruisers in Wasena Park, 18 men were charged – not with the act of sodomy, but with soliciting it from the officers.

The resulting legal fight has rumbled far beyond Wasena.

Garrison’s appeal is thought to be the first constitutional challenge of the law heard by a Virginia appellate court in at least 20 years.

Earlier this year the House of Delegates voted to reduce the crime of sodomy to a misdemeanor before a Senate committee killed the measure.

Although the Log Cabin Republicans did not receive Earley’s permission to file a brief, it’s not too late for them to enter the legal fray.

If a group wishing to become a friend of the court is denied permission from either side, it can still ask the Court of Appeals to allow it in.

Both Kocol and Elena Broder-Feldman, counsel for The Liberty Project, say they intend to do just that. The American Civil Liberties Union might also join the cause.

Once the briefs are filed, lawyers will make arguments to the court by late summer or early fall, and a decision could come by year’s end.

With a growing number of states abolishing their sodomy laws by either judicial or legislative action, attention is now turning to Virginia.

"These organizations that wish to file briefs apparently see the Virginia courts as not being close-minded about it," Garrison said. "They obviously think it’s worth their time."

In a petition to the Court of Appeals, Garrison portrayed the case as not just a gay-rights issue but one that affects "the fundamental right of 4.5 million adult Virginians to be free from governmental intrusion into areas where they have a reasonable expectation of privacy."

The appeal attacks the law on three fronts: that it violates privacy rights guaranteed by both state and federal Constitutions; that it is based on religious grounds and thus violates the separation of church and state; and that its potential five-year prison sentence subjects defendants to cruel and unusual punishment.

In addition to blasting the law’s language, critics also have complained about how it was used, saying police unfairly discriminated against gay men for behavior that is tolerated among heterosexuals.

The sting operation had mixed results in court. A city jury convicted one man and gave him 60 days in jail. Juries acquitted three other men, and the cases against two others were dropped by prosecutors. Twelve defendants pleaded guilty and were given suspended jail sentences and the chance to challenge the law on appeal.

Roanoke police and prosecutors have said that while they have no intention of invading the privacy of couples’ bedrooms, they were justified in using the sodomy law to respond to citizen complaints about cruising.

But the law makes no such distinctions, and Broder-Feldman of The Liberty Project argued that such a fundamental right of privacy "should not depend on the graces of prosecutors for its protection."

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