From the Archives: Crimes Against Nature Law Allows Virginia Police To Target Gays (2001)

This article, based upon survey research I did with Rasmussen Research for Virginians for Justice (later Equality Virginia), was originally published in the Free Lance-Star of Fredericksburg, Virginia, on February 9, 2001.  It preceded the U.S. Supreme Court's 2003 decision in Lawrence v. Texas, which invalidated the remaining anti-sodomy laws in the United States, including Virginia's "Crimes Against Nature" statute (Section 18.2-361 of the Virginia Code).

Crimes Against Nature Law Allows Virginia Police To Target Gays

Richard E. Sincere, Jr.

CHARLOTTESVILLE - When Republicans discuss the proper role of government, most agree that it should be low-cost, limited in scope, and nonintrusive in the lives of citizens.

Rank-and-file Republican voters, for the most part, stand by the words of the late U.S. Sen. Barry Goldwater:

"I have little interest in streamlining government or in making it more efficient, for I mean to reduce its size. My aim is not to pass laws, but to repeal them. It is not to inaugurate new programs, but to cancel old ones that do violence to the Constitution, or that have failed in their purpose, or that impose on the people an unwarranted financial burden.

"I will not attempt to discover whether legislation is ‘needed’ before I have first determined whether it is constitutionally permissible. And if I should later be attacked for neglecting my constituents’ ‘interests,’ I shall reply that I was informed their main interest is liberty and that in that cause I am doing the very best I can."

Do Virginia’s Republicans live up to this Goldwaterite ideal? Not always, but the impulse remains. Evidence for this is found in a recent poll from an unlikely source on an unlikely topic.

On Jan. 16 and 18, Rasmussen Research, an independent polling organization, conducted a statewide survey to determine knowledge and attitudes about Virginia’s Crimes Against Nature statute. This statute forbids certain intimate sexual activity, even in private and even for married couples. To be blunt, the law prohibits oral sex for any Virginian, whether they are gay or straight, married or single.

The law is enforced selectively. It is used to target gay men in public places who discuss having sex. It is used as a fallback when prosecutors cannot prove that a sexual assault has taken place, so the alleged perpetrator is accused and convicted of consensual sodomy instead.

And it is used as a pretext to deny child custody to gay or lesbian parents - for example, in the case of Richmonder Sharon Bottoms, which achieved nationwide infamy when the government forcibly took her son, Tyler, from her because she is a lesbian.

The Rasmussen Research poll found that, across the board, Virginians want the CAN law repealed. Large majorities in almost every conceivable category say they want to see the law eliminated, that they want their legislators to vote for repeal, and that legislators who support repeal will not be adversely affected at the ballot box.

This is true for Democrats, Republicans, and independents; it is true for men and women; it is true for whites and African-Americans.

In this random survey, Republicans showed clear consistency in their view that government should stay out of the private lives of citizens.

Virginia State Capitol in Richmond

Asked "Should it be against the law for an unmarried man and an unmarried woman to have sex in the state of Virginia?" 67.4 percent of Republicans answered "no," compared to 71.1 percent overall.

Asked "Should it be against the law for a married couple to have oral sex in the privacy of their own home?" 78.9 percent of Republicans answered "no" (81.7 percent overall).

Asked "Currently, according to Virginia law, it is illegal for consenting adults to have oral sex in the state of Virginia; a proposal has been made to eliminate the Virginia law; should the Virginia law be eliminated?" 61.4 percent of Republicans answered "yes" (65.2 percent overall).

Now, some members of the General Assembly say privately that they would support the repeal of the CAN law, but that they would have hell to pay on Election Day if they did. This is simply not true.

Survey participants were asked:

"Suppose your representative in the House of Delegates or the State Senate voted to eliminate the Virginia law. Would that make you more likely to vote for that person, less likely to vote for them, or would it have no impact on your vote?" Overall, 82.9 percent of Virginians said that they would either be more likely to vote for that representative, or it would have no impact on their vote; 83.5 percent of Republicans answered the same way, as did 77.5 percent of Democrats.

In other words, state legislators who vote to repeal the Crimes Against Nature law will have little or nothing to worry about in their re-election bids. The fear they cite is a red herring.

Republicans are part of a broad "leave us alone" coalition that wants the government to stop breathing down our necks. As speaker of the House of Delegates Vance Wilkins told The Washington Post, "It’s simply a matter of individual liberty versus not having the government be a nanny." We don’t trust the government to run our businesses, and we certainly don’t trust it to run our sex lives.

The spirit of Barry Goldwater lives on in Virginia.

RICHARD SINCERE serves on the national committee of the Republican Liberty Caucus.

From the Archives: Policy analyst James Gattuso discusses problems with Net Neutrality – Part II

Policy analyst James Gattuso discusses problems with Net Neutrality – Part II
January 24, 2011 12:15 AM MST

In a January 11 interview with the Charlottesville Libertarian Examiner, James Gattuso – who is a senior research fellow in regulatory studies at the Heritage Foundation in Washington, where he focuses on communication policy – spoke about the Federal Communications Commission’s recent ruling on so-called “Net Neutrality.”

Gattuso argued that the new rules were at odds with efficient economic operation of the Internet and also that they were based on “flawed” claims of legal authority by the FCC.

He also predicted that Congress will take action to reverse the FCC's ruling.


Congressional Review Act
One avenue will be the Congressional Review Act, which was passed in 1996 and allows Congress to overrule executive branch regulations.

Another possibility, Gattuso said, is “standalone legislation to reverse the FCC’s decision and strip them of authority to act in the future.”

This could face a hurdle, however, because Net Neutrality rules have “been a priority item for president Obama and he can veto any such standalone bill.”

He suggested that a “much more potentially winning strategy is going to be the funding approach, where they will put on an appropriations rider prohibiting the FCC from using any funds to enforce this rule.”


Threat to the First Amendment

James Gattuso (c) 2011 Rick Sincere

Finally, Gattuso expressed his concerns that the FCC’s new rules could have negative implications for freedom of expression now protected by the First Amendment.

“The rules as written by the FCC ban ‘unreasonable discrimination,’” he said. “They use the word ‘reasonable’ quite a bit in the rules, which ultimately means the FCC will have discretion to decide how content can be treated on the web, what can be given priority, and what must be given priority.”

This means, he added, that “whenever a company has a plan for treating one group of content different from another or even treating it the same as another, the FCC can say ‘yes’ or ‘no.’”

That will put the FCC “inevitably into the business of deciding what speech is valuable, what speech is important, and which speech is favored.”

That, Gattuso concluded ominously, is “a dangerous path.”

Publisher's note: This article was originally published on Examiner.com on January 24, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Policy analyst James Gattuso discusses the problems with Net Neutrality – Part I

Policy analyst James Gattuso discusses the problems with Net Neutrality – Part I
January 24, 2011 12:03 AM MST

When the Federal Communications Commission issued rules regarding Net Neutrality in December 2010, it set off a debate about the value and legitimacy of those regulations.

Earlier this month, the Charlottesville Libertarian Examiner had an opportunity to interview James Gattuso, senior research fellow in regulatory policy at the Heritage Foundation in Washington. Gattuso had addressed a group of Virginia political activists in Richmond about the FCC’s new rules.

Gattuso summarized his remarks by saying that “the FCC last month adopted rules to regulate the Internet. They’re vague rules but, I think, very detrimental rules to society and the economy.”


‘Vague notion of fairness’

The argument for these rules, he said, “is essentially a vague notion of fairness,” which posits that “ISPs -- companies like Verizon and Comcast, which provide Internet service to individuals and businesses -- should treat all traffic the same, with no differentiation between how the speed or quality with which they’re delivered.”

This, he went on, is a “tempting idea but ultimately flawed.”

It is flawed “because for practical purposes there’s always been and needs to always be differentiation” in services regardless of what kind of business is under discussion.

Moreover, Gattuso said, “the idea of premium services and discount services is inherent to a marketplace. I can’t think of a single industry that does not use premiums and discounts. It’s an economic tool that’s beneficial to consumers.”

Premiums and discounts, he continued, are “necessary to the success of the Internet itself.”

No legal authority

Gattuso also argued that the FCC lacks the legal authority to issue Net Neutrality regulations.

James Gattuso (c) 2011 Rick Sincere

The FCC gets its authority from the Communications Act of 1934 and many subsequent amendments, he said. This law “gives the FCC authority over broadcasting. It gives the FCC authority over the telephone system, but it does not give authority anywhere in the text [for] regulating the Internet.”

To get around this lack of legal authority, Gattuso noted, “the FCC has argued in the past that it has what is known as ‘ancillary jurisdiction,’ which means if they regulate something that is similar to the Internet, they can regulate the Internet itself.”

The problem with this position, however is that the claim “was thrown out in a case in federal court last April, without much ceremony. It was not taken seriously by the court, nor should it have been,” said Gattuso.

However, he added, “with this December decision, the FCC is coming back again with a very similar argument, this time based upon a particular section [of the code] that was meant to be deregulatory.”

In that section, “Congress instructed the FCC to act to encourage development of advanced Internet services. This was a provision that was meant to instruct the FCC to deregulate, to reduce barriers, to advance Internet services if they are not being deployed.”

What the FCC is claiming now is that this deregulatory provision of communications law is “in fact a new grant of authority that they did not otherwise have, mandating them to regulate.”

This, Gattuso concluded, is “a complete reversal of what Congress intended and, ultimately, also legally flawed.”

In Part II of this interview, James Gattuso talks about what the congressional response might be, and whether Net Neutrality is a threat to freedom of expression.


Publisher's note: This article was originally published on Examiner.com on January 24, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.