Skip to comments.Two cases from Va. Beach challenge state's sodomy law
Posted on 07/12/2004 6:34:13 PM PDT by wagglebee
RICHMOND A Virginia Beach man convicted of soliciting sex in a department store bathroom is challenging the state's sodomy law, which prosecutors have continued to enforce a year after the Supreme Court's landmark ruling in Lawrence v. Texas.
Lambda Legal, the gay rights group that handled the Lawrence case, filed a petition with the Virginia Court of Appeals Monday on behalf of Joel Singson, who was convicted of solicitation of sodomy last year.
His challenge follows a similar petition to appeal that was filed by another Virginia Beach man in May, and a case involving two inmates that was appealed to the Virginia Supreme Court earlier this year.
At issue in each of the cases is whether the ruling that struck down a Texas law against sodomy in private settings invalidates Virginia's law. Attorney General Jerry W. Kilgore maintains that Virginia's law is still enforceable against sodomy in public places, while opponents say the law should be stricken entirely.
Before the Lawrence decision, 13 states still had laws prohibiting sodomy between consenting adults, according to Lisa Hardaway, spokeswoman for Lambda Legal. She said she was aware of only two states Virginia and North Carolina still enforcing their sodomy laws after the ruling.
Singson, 36, was sentenced in February to six months in prison. His attorney, Greg Nivens, argues in the challenge that Singson should not have been prosecuted under an unconstitutional law.
"There are other laws that can apply here the prostitution statute and indecent exposure that cover public acts," said Greg Nivens, senior staff attorney at Lambda Legal's Atlanta office. "What's not available is use of the actual sodomy statute. ... The sodomy law is dead."
The prosecutor in the case, David Laird of the Virginia Beach Commonwealth Attorney's office, disagrees. Since Virginia's law makes no distinction between public and private acts, or between homosexual and heterosexual acts, it can still be enforced selectively, Laird said.
"If you can interpret it in a way that is constitutional, a judge is supposed to interpret it that way," he said.
Kilgore's office said it is prepared to defend the law.
"Our law is about public acts of sodomy," said Kilgore spokesman Tucker Martin. "We've made a decision that public acts of sodomy are still prosecutable and we'll stand by that."
In February, the attorney general's office won an appeal filed by Trondell Askew, who was convicted of performing sodomy on a fellow inmate in a prison yard at the Southampton Correctional Center and sentenced to three additional years.
The appeals court ruled that Askew could not object to the constitutionality of the statute in an appeal if his attorney did not first raise the objection during his trial.
Askew's attorney, Richard Railey Jr., said his client was tried and convicted before the Lawrence decision was handed down. He has appealed the decision to the Virginia Supreme Court.
The Virginia Court of Appeals is also deciding whether to hear the appeal of Andy Tjan, who was convicted of propositioning an undercover officer in a Virginia Beach department store bathroom last year.
Tjan, 35, was sentenced to a three-year suspended sentence.
His attorney, James Broccoletti, accused the judge in the case of "legislating" to make the anti-sodomy statute enforceable.
"I think (judges) are stepping in and parceling out the statute and making a legislative decision," he said. "I don't think the courts can read into the statute."
The Virginia General Assembly had several bills before it earlier this year that would have repealed or rewritten the law to conform with the Lawrence decision, but the majority-holding Republicans rebuffed them all.
A claim that such-and-such a law may not be enforced because it violates the US Constitution is clearly a "Controvers[y] to which the United States shall be a Party" -- the judgment of which is explicitly assigned to the judiciary.
If the state chose to ignore the ruling, in effect nullification, it does have precedent in this nation's history. In fact more than once before 1850. These states have chosen not to recognize the false supremacy of the national government over the will of the respective states when it comes to their internal affairs. Good to see NC still enforcing the law as well
Incorporation is explicitly within the original intent of the Fourteenth Amendment:
Debate over the anti-KKK bill naturally required exposition of Section 1 of the Fourteenth Amendment, and none was better qualified to explain that section than its draftsman, Rep. John A. Bingham (R., Ohio):The courts have erred in creating a doctrine of selective incorporation in order to weasel out of (for example) requiring the states to respect the right to keep and bear arms (the drafters of the Fourteenth Amendment were quite clear in stating that one of their objectives was to prohibit the ex-rebel states from disarming the freedmen).Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the constitution of the United States. Those eight amendments are as follows: [text of Amendments I-VIII] These eight articles I have shown never were limitations upon the power of the States, until made so by the Fourteenth Amendment.
Should have read "hardly dispositive." Sorry about that.
Yeah, such a "cold shoulder" that they let him draft the amendment and then pushed the result through the ratification process.
Sorry, but you're still stuck unless you wish to join the Night Of The Living Constitution crowd in repudiating the whole notion of original intent.
From the Slaughterhouse Cases, the Civil Rights Cases (regarding the 1875 Civil Rights Act,) Hurtado v. California, through till 1922, the Supreme Court had not taken the step of incorporation, but had limited its application to only those rights expressly stated. With one or 2 minor and transient exceptions, it was not until 1925 in Gitlow v. New York that the Court began to interpret a provision of the Bill of Rights as binding upon the States.
The whole thing is a fraud anyway, since the 14th Amendment was never lawfully ratified. And both this amendment and the Incorporation Doctrine that has generated from it have been disastrous to our republican form of government. Among other problems, it has permitted the Federal courts to impose perverted interpretations of these amendments onto the States, like ruling the Establishment clause prohibits a manger scene at city hall, or like the Warren Court did to protect communist traitors starting around 1954, essentially deleting the words "in any criminal case" from the 5th Amendment. There are many more examples.
For a good analysis of this see Susan Shelley's How the First Amendment Came to Protect Topless Dancing. Her intro summarizes the story:
It is the incorporation doctrine that prohibits voters in each state from deciding what their law should be on school prayer, flag-burning, topless dancing, loitering, panhandling, unreasonable searches, Miranda warnings, admissibility of evidence, and, at times, the death penalty. It is the incorporation doctrine that turned views on abortion into a litmus test for judges. It is the incorporation doctrine that has put the U.S. Supreme Court at the center of controversy in American politics.
That might be fine, if anyone in the country had ever agreed to it. Instead, this overwhelming change in the structure of government was made by the U.S. Supreme Court alone, while voters and elected officials looked on, helpless to stop it.
Or are they?
I'm sorry, but I regard a claim that a generally recognized Constitutional amendment "was never lawfully ratified" as a signpost.
The sign says "WELCOME TO TINFOIL WORLD".
Then you'd love the 16th Amendment too. See the The Law That Never Was.
The only real question here is whether you believe that a proposed amendment must be passed by 2/3 of both houses of Congress and ratified by 3/4 of the States as required by the Constitution. Three-quarters of the States did NOT ratify the 16th Amendment, yet Alexander Knox declared it ratified anyway and listed States whose legislatures hadn't even been in session on the day they supposedly assented.
The 14th Amendment is even better known. No serious historian denies that this amendment was ratified in a manner that was not constitutional. David Lawrence, as Editor of US News and World Report summed up the reasons here.
Of course, today both of these amendment are "generally recognized" and are so intertwined with our jurisprudence that they have the de facto authority of amendments even though both are illegitimate. BUT -- this does not change the fact that the 14th Amendment was, historically, not lawfully ratified. And this fact is worth pointing out when we discuss the destructive effect this amendment has had on our Republic.