Skip to comments.Sodomy law ruling sparks Va. debate
Posted on 08/28/2003 5:44:25 AM PDT by M 91 u2 K
Groups question validity of Va. law Sodomy law ruling sparks Va. debate The Texas court decision that overturned laws banning sodomy in private coincides with indictments in Virginia alleging public sodomy.
By MATT CHITTUM THE ROANOKE TIMES
When the U.S. Supreme Court struck down Texas anti-sodomy law in June, its ruling came in the middle of a three-month investigation by Harrisonburg police of alleged public sodomy at a city adult bookstore.
Laws banning private sodomy are unconstitutional, legal minds quickly agreed, but the government can still prosecute for sodomy in public.
So, three weeks after the ruling, Harrisonburg Commonwealth's Attorney Marsha Garst used evidence from the bookstore investigation to win indictments against 26 men, many of them charged with sodomy and solicitation to commit sodomy, both felonies. Among them was a Washington and Lee University vice president.
But the American Civil Liberties Union and some gay-rights advocates argue the charges could be invalid. Virginia's entire law is null even against public sodomy, simply because of the way it is written, they say.
"Our interpretation is that any charges under the sodomy law are invalid at this point," said Kent Willis, executive director of the Virginia ACLU. Other misdemeanor charges were available to the police, Willis points out, including lewd and lascivious cohabitation, obscene exhibitions and indecent exposure.
"My concern [is] that this law can still be used to harass and intimidate gay men," said Dyana Mason, executive director of Equality Virginia, a gay-rights organization.
House Majority Leader Morgan Griffith, R-Salem, says he believes the law is fine as it is, and he says lawyers on the Virginia Crime Commission agree.
But even the prosecutor in the Harrisonburg cases believes everyone would be better off if the General Assembly rewrote the law to clarify what's legal and what's not in the wake of the ruling in Lawrence v. Texas.
Whatever the verdicts, the cases seem sure to help shape the future of Virginia's anti-sodomy law.
A blanket prohibition
Garst says the men arrested in Harrisonburg were not targeted because they were homosexuals. The police would have cracked down on the activity just as strongly if heterosexuals were having sex in a public place such as a bookstore, she added.
Garst and her critics agree that the ruling in the Texas case provides no protection for sodomy performed in public, regardless of the participants' sexual orientation.
Lawrence v. Texas grew out of the arrest of two men under a Texas law barring "deviate sexual intercourse." Police responding to a false report of a disturbance discovered the men having sex in a Houston apartment.
The court decision overturned laws banning sodomy in private. Laws forbidding sodomy in public are unaffected.
But drawing that line in Virginia is complicated by the way Virginia's "crimes against nature" law is written, say Willis and Sam Garrison, a Roanoke attorney and gay-rights activist.
Like most states, Virginia has a "savings clause" in its state code to allow for the preservation of the remainder of a law when part of it is struck down by a court ruling. It's usually applied when one distinct section of a multipart law is affected. Section A of a law might be invalidated, but sections B and C could remain on the books.
Virginia's law barring sodomy has only one part. It's a blanket prohibition of oral and anal sex, with no mention of the distinction between public and private. A single subsection addresses incest.
With no way to separate sodomy in public from sodomy in private, the argument goes, the whole law is bad.
As University of Virginia Law School professor Anne Coughlin put it, "Here, you don't know what to save."
"I really think that the better argument is that the whole [code] section's gone," Garrison said.
House Majority Leader Griffith, a lawyer, doesn't believe that's a proper legal interpretation. Griffith believes the law can be used as is, and that the General Assembly doesn't need to tinker with it. "I think we're better off leaving the thing alone and letting the courts sort out some of it, and then us step in if there's a problem," he said.
Coughlin, however, called it "risky in the extreme" for the legislature to abdicate its responsibility to write a new law.
"Boy, does that put prosecutors and police departments in a ticklish situation," Coughlin said. "Should police departments and prosecutors be deciding what Lawrence means, and also what the Virginia legislature wants in light of Lawrence?"
Garrison adds judges to the list. "Judges aren't supposed to have to guess, 'What would the Virginia General Assembly intend here?'" he said.
Garst, who will prosecute the men charged in Harrisonburg, said she believes prosecutors have "enough basis and argument to proceed."
But Garst acknowledges there is debate among Virginia's prosecutors.
"I think it's an important question to be addressed by our legislators," she said. Clarity is "better for all of us."
Politically sensitive law?
Coughlin believes legislators don't want to touch the law in part because they don't want a public debate about a subject such as sodomy.
But Griffith said that when the General Assembly session starts in January, as many as 20 bills to rewrite the sodomy law could be introduced.
"I think there are going to be bills all over the place," he said. "If we could get a circuit court opinion on this before January, it would clarify whether or not we need to do anything with the code," Griffith said.
Griffith could get his wish.
Besides the Harrisonburg cases, a Virginia Beach man arrested for soliciting sodomy in a public restroom is using the Texas ruling to challenge Virginia's law.
But Mason, the head of Equality Virginia, prefers for lawmakers to clarify the law.
"I'd rather have us come to some better understanding of the technicalities of this than by dragging someone through the court process," she said
Oooh, now this is a tough one. Lemme see. Ow, ow - brain hurts.. Hold on, it's coming to me. Hey! How 'bout they just rewrite the statute to specify public conduct?!
Straining at a Ten Commandment gnat and swallowing a sodomy camel.
In time, I'm sure superlegislature SCOTUS will do just that.