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Two cases from Va. Beach challenge state's sodomy law
Virginian Pilot ^ | 7/13/04 | JUSTIN BERGMAN/AP

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.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Extended News; Government; News/Current Events; US: Virginia
KEYWORDS: aids; celebrateperversity; dnastains; dontsitontoilets; hiv; hivaids; homosexualagenda; jerrykilgore; lawrencevtexas; prisoners; publichealth; publicsex; richmond; samesexdesire; sexinbathrooms; sexinrestrooms; sodomites; sodomy; sodomylaws; solicitation; stds; vageneralassembly; virginia; virginiabeach; watchingyoupee
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.

I'm very grateful to live in a state where the legislature follows its conscience and does what's right instead of trying to placate a bunch of leftists.

1 posted on 07/12/2004 6:34:14 PM PDT by wagglebee
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To: wagglebee
It is nice to see the peoples' representatives doing their jobs instead of cowering before nine (or in the case of Lawrence, 5) unelected dictators. If only our reps in Congress and the White House would show as much courage.
2 posted on 07/12/2004 6:41:17 PM PDT by asmith92008 (If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)
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To: wagglebee
Amazingly, in the face of the fact this guy was doing it, any number of "homosexual rights" activists will claim "this never happens".

What we need, though, is for the Virginia State Police to catch Justice Souder out there at the rest-stop in Manassas. It's gonna' happen ~ eventually!

3 posted on 07/12/2004 6:44:32 PM PDT by muawiyah
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To: asmith92008

I have always wanted one of these Constitutional "scholars" to show me where in the Constitution the SCOTUS is empowered to be the arbiter/interpreter of what is and isn't Constitutional. Because logic would dictate it lies within the executive branch's powers. Unfortunately, the Court used Marbury vs. Madison to seize this power and nobody (except Andrew Jackson) ever attempted to stop them.


4 posted on 07/12/2004 6:53:05 PM PDT by wagglebee
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To: wagglebee
"logic would dictate it lies within the executive branch's powers."

Actually, that's the last place the framers would have placed such a power. The Executive branch was intentionally made the weakest of the three precisely because they were trying to get away from Crown rule, in which vast power was held by an individual. If we're not to hand that power to the SCOTUS, then the only other logical alternative would be the Congress. That creates a conflict of interest, as it's never going to rule that one of its own laws is unconstitutional.

The nice thing about giving the SCOTUS this power is that it's not subject to the whims of an individual, and there still remains one final check; the power to amend the Constitution. Do I like a lot of the rulings coming from the SCOTUS? Absolutely not - but I think I'd like a corrupt future Executive reinterpreting the second amendment to mean that I'm allowed to have two upper extremities even less.
5 posted on 07/12/2004 7:04:06 PM PDT by NJ_gent
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To: wagglebee

Is the argument now - since sodomy is a new right - that we can drop trou and have oral sex any ol' where we wanna?

Will we soon have sucking and non-sucking sections in public places?


6 posted on 07/12/2004 7:18:18 PM PDT by whereasandsoforth (A house divided is a duplex)
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To: *Homosexual Agenda; EdReform; scripter; GrandMoM; backhoe; Yehuda; Clint N. Suhks; saradippity; ...

Homosexual Agenda Ping - Virginia is for Lovers [of truth and morality].

Good one! So the homosexual rights people are saying that PUBLIC sodomy is ok??

Let me know if anyone wants on/off this pinglist.


7 posted on 07/12/2004 7:39:34 PM PDT by little jeremiah ("You're possibly the most ignorant, belligerent, and loathesome poster on FR currently." - tdadams)
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To: wagglebee

I thought the Supremes said stay out of the bed room.

Does this guy sleep there?


8 posted on 07/12/2004 7:45:57 PM PDT by Dan(9698)
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To: wagglebee
Unfortunately, the Court used Marbury vs. Madison to seize this power and nobody (except Andrew Jackson) ever attempted to stop them.

That opinion tells you where the 'scholars' find that "It is emphatically the province and duty of the judicial department to say what the law is." There are several arguments in there.

9 posted on 07/12/2004 8:25:48 PM PDT by FreeBSD
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To: wagglebee
Actually, Raoul Berger makes a pretty convincing case that judicial review is constitutional in Congress vs the Supreme Court. However, he makes an even stronger case that that limited power has been expanded beyond all scope, i.e. by incorporating the Bill of Rights against the states.

However, there is also a strong argument that the fact that all officers of state and federal government take an oath to uphold the Constitution, that they have an implied right to interpret the Constitution. After all ,what would happen if the SOTUS wunderkinds decided one day to decide slavery was constitutional again (see Dred Scot) then would state officials really have to swallow that tripe?
10 posted on 07/12/2004 8:32:30 PM PDT by asmith92008 (If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)
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To: FreeBSD
There are also several counterarguments to those arguments. I'd have to dust off my con law notes, but Marbury was a very badly crafted and decided case. After all, the Court determined that it lacked jurisdiction. the rest is dicta and shouldn't have even been included.
11 posted on 07/12/2004 8:34:34 PM PDT by asmith92008 (If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)
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To: NJ_gent
The only problem with that logic is that you can't unelect a Supreme Court justice. A "corrupt executive" or Congress lasts only as long as we let him. We're stuck with Ruth Bader Ginsburg, Souter and Stevens for life.
12 posted on 07/12/2004 8:36:44 PM PDT by asmith92008 (If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)
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To: wagglebee

Thank you for posting this.

I am grateful for those who have held the line in VA. Certainly thankful for those who are able to turn back the leanings of our Northern VA mush-heads.

Cannot help but ask the God of mercy to reward these courageous individuals for their proection of the majority of the populace.


13 posted on 07/12/2004 8:37:27 PM PDT by Spirited
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To: Spirited
I certainly oppose an unelected supreme court interfering and getting rid of sodomy laws but I think these laws are bad. Do most people realize that the vast majority of anti-sodomy laws don't even have exceptions for heterosexual married couples
14 posted on 07/12/2004 9:56:48 PM PDT by newfarm4000n (Taxes for social security is theft)
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To: wagglebee
"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.

Not when The National Gay and Lesbian Task Force gets done running the courts:

Sexual Freedom Activists Target 'Archaic, Unjust' Sex Laws

In addition, the project will examine laws against public lewdness, "which are routinely misused to persecute and prosecute people who participate in non-traditional forms of sexual expression."

"I've seen firsthand how the misuse of these [public lewdness] laws has ruined the lives of gay and bisexual men," said Matt Foreman, executive director of the National Gay and Lesbian Task Force.

Plus:

Homosexual Public Restroom Sex Defended In California (Hey, They Were Born That Way!)

15 posted on 07/12/2004 10:36:01 PM PDT by weegee (Government does not solve problems; it subsidizes them. ~~Ronald Reagan)
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To: newfarm4000n
Actually it was only a handful of states that prohibited aberrant heterosexual acts like sodomy. Texas called it abberant but still permitted it as a legal act for heterosexuals.

If all sodomy is now legal (by privacy, "equal protection" would have permitted the total ban of sodomy on a state by state basis) why isn't prostitution legal? There are no fornication or adultery laws anymore prohibiting sex between unmarried partners. You can pay a babysitter to give unlicensed childcare in your home. It is a sex act between consenting adults.

16 posted on 07/12/2004 10:39:28 PM PDT by weegee (Government does not solve problems; it subsidizes them. ~~Ronald Reagan)
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To: asmith92008
"Life" for some will likely pass in the next 4 years which makes the 2004 election more critical (both for the Presidency and Sentate).

There was much speculation that President Bush would be nominating 1 or 2 justices during his current administration.

17 posted on 07/12/2004 10:41:10 PM PDT by weegee (Government does not solve problems; it subsidizes them. ~~Ronald Reagan)
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To: asmith92008

The right of the Federal judiciary to strike down Federal laws that violate the Constitution is inherent in the very concept of the judiciary which was understood as part of the evolution of our jurisprudence during the pre-revolutionary colonial period. See Judicial Supremacy in America: Its Colonial and Constitutional History by R. Carter Pittman (who incidentally was notorious for his defense of States' Rights.)

The real issue here concerns the extent of the Supreme Court's authority in adjudicating between a State and her citizens. Article III, Sect. 2 gives the Federal courts authority over "Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

Notice that the Federal courts are nowhere given authority in controversies between a State and citizens of that same State. Once a state citizen has appealed to the State's highest court, there is no further recourse provided under the Constitution. Period.

The Incorporation Doctrine, far more than Marbury v. Madison, is an example of the Supreme Court seizing power over the States totally on its own caprice, with neither the States nor the people having had any say in that matter. Frankly, any attempt to curb the Incorporation Doctrine would be insufficient, even if it could be done. The Fourteenth Amendment must be repealed in toto.

18 posted on 07/12/2004 11:28:59 PM PDT by MrLeFevre
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To: wagglebee
A Virginia Beach man convicted of soliciting sex in a department store bathroom is challenging the state's sodomy law...

Pressed for a comment, the sodomite defended his actions by stating, "Hey -- would you rather I take my business to Macy's front window?"

19 posted on 07/12/2004 11:40:37 PM PDT by F16Fighter
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To: wagglebee
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.

Constitutional law just doesn't work the way Kilgore says it does. If a law is found un-Constitutional, the police can't make up their own limited version -- the legislature has to do that (and AFAIK has not done so in Virginia).

To make the point more clearly with an exaggerated hypothetical, suppose that a law is passed prohibiting any discussion of nuclear physics. Someone who sold the secret of the "suitcase nuke" to al-Qaeda is prosecuted under this law. In a different case, the Supreme Court (quite properly) finds this hypothetical law to be an infringement of First Amendment rights. The guy would get off scot-free, unless charged under some other law (such as the real-world laws that specificially address classified information and aid to criminal conspiracies).

20 posted on 07/13/2004 6:35:17 AM PDT by steve-b (Panties & Leashes Would Look Good On Spammers)
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To: wagglebee

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.


21 posted on 07/13/2004 6:40:12 AM PDT by steve-b (Panties & Leashes Would Look Good On Spammers)
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To: steve-b; Constitution Day; azhenfud

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


22 posted on 07/13/2004 6:40:53 AM PDT by billbears (Deo Vindice)
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To: asmith92008
However, he makes an even stronger case that that limited power has been expanded beyond all scope, i.e. by incorporating the Bill of Rights against the states.

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):
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.
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).
23 posted on 07/13/2004 6:44:32 AM PDT by steve-b (Panties & Leashes Would Look Good On Spammers)
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To: steve-b
Read Berger's Government By the Judiciary, published by Liberty Fund, Inc. His Chapter 8 refutes the view that Bonhgam's views were dispositive, indeed that his fellow Republicans gave him quite a cold shoulder.
24 posted on 07/13/2004 8:34:26 AM PDT by asmith92008 (If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)
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To: steve-b

Should have read "hardly dispositive." Sorry about that.


25 posted on 07/13/2004 8:41:42 AM PDT by asmith92008 (If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)
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To: asmith92008
his fellow Republicans gave him quite a cold shoulder

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.

26 posted on 07/13/2004 8:59:27 AM PDT by steve-b (Panties & Leashes Would Look Good On Spammers)
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To: steve-b
As I said, read Berger. I don't have time to copy the entire chapter on a post.

Suffice it to say, Berger shows that Bingham's comments were at best muddled and though he might have made the first draft of the amendment, that language was not what became the final, ratified product.
27 posted on 07/13/2004 12:54:23 PM PDT by asmith92008 (If we buy into the nonsense that we always have to vote for RINOs, we'll just end up taking the horn)
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To: steve-b

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?

28 posted on 07/13/2004 5:34:51 PM PDT by MrLeFevre
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To: wagglebee
"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."

They're arguing that a right to privacy protects public sodomy?

Public=private, Day=night, right=wrong, 2+2=5
29 posted on 07/13/2004 9:50:59 PM PDT by Wampus SC
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To: MrLeFevre
was never lawfully ratified

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".


30 posted on 07/14/2004 5:46:46 AM PDT by steve-b (Panties & Leashes Would Look Good On Spammers)
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To: steve-b

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.

31 posted on 07/14/2004 11:51:51 AM PDT by MrLeFevre
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