Last edited: February 14, 2005

Sodomy Case Heads Toward Resolution

Virginia Court of Appeals to Hear Oral Arguments Week of Sept. 12

Washington Blade, July 21, 2000

By Bill Roundy

A court case challenging the constitutionality of the Virginia sodomy law is heading toward a tentative resolution. Both sides have filed briefs in the case, and a three-judge panel of the Virginia Court of Appeals will hear oral arguments during the week of Sept. 12.

The case arises from 10 men charged with soliciting undercover police officers for sex in a public park in Roanoke. The men have argued that the state’s "Crimes Against Nature" law is an unconstitutional infringement on the privacy rights of all Virginians. Assistant Attorney General John McLees is trying to limit the scope of the case, however, arguing in a brief that "these defendants, who solicited homosexual oral sodomy from strangers in a public park" have no right to argue that the law infringes on the rights of married couples."

"Whatever may be the privacy rights of consenting married adults acting in private, these defendants certainly did not fit into that category, and cannot ride on the constitutional coattails of those who do," McLees writes. Furthermore, he argues, there is no constitutional protection for homosexual sodomy.

Sam Garrison, the openly Gay attorney who is arguing against the law, is trying to make the case as expansive as possible. Because the "Crimes Against Nature" law applies to acts of oral or anal sex by any person in the state, regardless of gender or marital relationship, and because police have testified that they are willing to use the law against heterosexual couples, the men charged in this case are essentially "in the same boat" with every other Virginian, Garrison says.

"These are not ‘gay rights’ cases," states Garrison’s brief. "They involve instead the fundamental right of 4 million adult Virginians, male, female, married, unmarried, straight, gay, whatever, to be free from even the threat of needless, pointless, and unjustified governmental intrusion into areas where they have a reasonable expectation of privacy."

In a reply to the commonwealth’s brief, Garrison also asked the court to consider the indiscriminate breadth of the sodomy law in the interests of practicality.

"It is just a matter of time, indeed perhaps a very short time, before another case is before the court presenting essentially the same questions as are presented here," Garrison notes. Another court case, Fisher v. Commonwealth, a case of a man convicted of consensual sodomy with a woman in a hotel room, is currently working its way through the appeal process, and by acting now the court could give guidance to lower courts in dealing with such cases, Garrison says.

The 29-page brief filed by the Attorney General’s Office in defense of the law relies heavily on the 1986 U.S. Supreme Court case Bowers v. Hardwick, which held that prohibitions on homosexual sodomy do not violate the federal right to privacy. The right to privacy inherent in the Virginia Constitution, the brief argues, is no broader than the federal definition.

Furthermore, McLees warns that finding constitutional protections to engage in private sexual behavior is "inappropriate because its ultimate result will be the prohibition of any criminal statutes that regulate private, consensual conduct, such as fornication, adultery, prostitution, and even assisted suicide."

Garrison refutes these claims in a reply to the state’s brief. The Virginia Constitution has a stronger right to privacy than the U.S. Constitution, he says, because of "Declaration of Independence"-style language regarding liberty and the pursuit of happiness that is not included in the federal Constitution. Garrison also questions the constitutional authority of Bowers v. Hardwick. Because retired Supreme Court Justice Lewis Powell later stated that the dissent in Bowers "had the better case," and because of the Supreme Court’s ruling in Romer v. Evans (where the court struck down a Colorado amendment prohibiting civil rights protections based on sexual orientation), Garrison argues in the brief that "the Bowers decision is already headed the way of Dred Scott’s Case and Plessy v. Ferguson into disrespect and legal disrepute — indeed, into the ash heap of ill-advised federal constitutional law decisions destined eventually to be over-ruled."

Another element of the appeal rests on the separation of church and state. Because the "Crimes Against Nature" law has no secular justification, Garrison asserts, and is based solely on religious prohibitions of sodomy, it serves as an "impermissible establishment of sectarian religious views."

The commonwealth’s brief deals with this matter only briefly, stating flatly that "the Virginia statute’s valid secular legislative purpose is to enforce and preserve public morality as that concept is envisioned by the electoral majority. … The statute has nothing to do with an establishment of religion, any more than does Virginia’s proscription against murder."

Each side will have an opportunity to continue the argument during the week of Sept. 12 in Salem, Va., when they will be given 15 minutes each to testify and answer questions from a three-judge panel of the Court of Appeals. The exact date of the hearing has not yet been determined, according to a clerk of the court.

Regardless of the Court of Appeals’ decision, the status of the "Crimes Against Nature" law will probably not be totally resolved, Garrison told the Blade. The appeals court decision can be appealed to the Virginia Supreme Court, and it is likely that whichever side "loses" at the Court of Appeals level will seek redress in the higher court.

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