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.

Guest Post: The Qur’an, the Bible and homosexuality in Islam

Christopher van der Krogt, Massey University

Neither the Bible nor the Qur’an (Koran) has a lot to say about homosexuality, and what they do say relates only indirectly to contemporary discussions about gay rights and same-sex marriage. Like pre-modern scholars of law and ethics, these books assume heteronormativity.

Peter Paul Rubens, Lot and his family escaping from the doomed city guided by an angel, circa 1615.

As a concept, homosexuality is relatively recent, even if there is plenty of evidence for homoerotic pleasure in the past – albeit illicit in religious terms.

Scriptures and later writers usually referred only to particular sexual acts and did not raise the issue of personal sexual orientation. For religious conservatives, though, both Muslim and Christian, the occasional derogatory reference to same-sex acts is enough to prove their inherent sinfulness in all circumstances.

More liberal interpreters point to broader ethical considerations such as compassion and empathy. They argue that the condemnations of scripture do not apply to committed relationships founded on love.

Such a perspective, however, is inevitably more common among believers concerned with human rights, influenced by gender theory, and trained in contextual and holistic methods of interpretation.

Homosexuality in the Bible

Leviticus 20:13 (cf. 18:22) declares it abominable for a man to lie with another man as with a woman, and both partners are to be executed. The possibility that one party has been coerced is not discussed: both are defiled. However, the offence seems to be no worse than other capital crimes mentioned in the same context, such as adultery and incest.

Paul evidently regarded the prohibition of sexual acts between men or between women as violations of natural law known even to non-Jews – at least if their minds were not clouded by idolatry (Romans 1:18–32; 2:14–16).

He seems to have reflected contemporary views that men should be sexually assertive and women passive, and that sexual activity must be at least potentially procreative.

Sodom and sodomy

Lot fleeing with his family, by Peter Paul Rubens, 1615.
via Wikimedia Commons

For Jews, Christians, and Muslims alike, the story of Sodom is central to the traditional condemnation of male homosexuality. As recounted in Genesis 19, however, this is not a story about love or consensual sex between men: it is about rape and inhospitality.

The mob that gathers outside Lot’s house need not be exclusively male (the Hebrew plural anashim can include both genders), and the text says all ages were represented (Genesis 19:4, 11). When the crowd demands Lot’s visitors, he offers his two virgin daughters in their stead. Perhaps he considers the rape of his daughters a lesser evil than the rape of his guests.

The fact that the guests are male is not emphasised. After the visitors (angels in human form) rescue Lot and his family, God rains down fire and brimstone upon Sodom, Gomorrah, and other cities nearby.

Actually, he had already determined to punish all these towns and their inhabitants, male and female, young and old, before the angels’ visit and the attempted homosexual rape (Genesis 18:16–33). When the wickedness of Sodom is recalled in other parts of the Bible, homosexuality is not mentioned. Yet, despite this broader context, the story was often interpreted primarily as a condemnation of homosexual activity in any form.

In the Qur’an, the somewhat ineffectual Lot of Genesis becomes the Prophet Lut. The Arabic term for homosexual anal intercourse, liwat, comes from his name rather as English derived the term sodomy from the name of the town.

As in Genesis, Lut seems to argue with the men of Sodom over the relative propriety of abusing his daughters or his guests (11:78–79; 15:67–69). More often, though, the emphasis is on his condemnation of lusting after men instead of women (7:80–81; 26:165–66; 27:55; 29:29). In the Qur'an, Lut says:

Indeed, you approach men with desire, instead of women. Rather, you are a transgressing people.

Traditional Islamic perspectives

In the Hadith (thousands of stories reporting the words and deeds of Muhammad and his companions that are comparable in authority to the Qurʾan itself), there is some support for the notion that the principal offences of Sodom were idolatry and avarice. These led in turn to inhospitality and the rape of male visitors.

Hadith Silsilat al Dhahab (Golden Chain Statue) in Nishapur, Iran.
Sonia Sevilla, CC BY

Nevertheless, the Hadith do unequivocally condemn male homosexual acts. The Qur’an (4:16) demands unspecified punishment for men guilty of lewdness together unless they repent.

Yet, the Prophet is supposed to have declared that both the active and the passive partner should be subject to the same penalty as for zina (illicit heterosexual sex, usually adultery), namely execution by stoning. Abu Dawud’s authoritative hadith collection records a report from Abdullah ibn Abbas:

The Prophet (peace be upon him) said: If you find anyone doing as Lot’s people did, kill the one who does it, and the one to whom it is done (38:4447).

It is doubtful whether any passage of the Qur’an refers to lesbian acts though the condemnation of women who commit indecency (4:15) is sometimes read this way. A few hadith warn women against seeing or touching each other when naked.

Traditional Islamic jurisprudence assumed strict gender roles. The 17th-century Muslim scholar Haskafi explicitly included “a male” in his list of those whom a man could not legally marry.

Marriage was understood in hierarchical terms, but although a man could have sexual relations with female slaves, he did not have the same rights over male slaves.

Pre-modern scholars who produced lists of “enormities” included liwat and sometimes tribadism (“rubbing”, that is, lesbian intercourse) after zina. Prescribed penalties for homosexual acts varied according to different schools and individual scholars. In any case, it was difficult to attain the required level of eye-witness testimony.

In practice, homosexual encounters, including with young male prostitutes, seem to have been quite common in Islamic societies. They were no more or less a cause for moralistic concern than other forms of illicit sex.

Reinterpreting the Islamic tradition

Without actually endorsing homosexuality, some Muslims in Western societies have recognised a parallel between the religious acceptance they demand and the acceptance demanded by gays and lesbians.

The New Zealand Muslim MP Ashraf Choudary (who did not realise that the Qur'an does not urge the stoning of homosexuals) observed that,

if the law allows one minority group in our society to be discriminated against then all minorities are vulnerable.

Some, such as Cambridge philosopher Abdal Hakim Murad (Timothy Winter), have accepted that a homosexual orientation may be innate but say that does not make homosexual sex permissible.

Deducing that it may therefore be legitimate remains a step too far for most.

Traditionally, if sins can be forgiven when repented, declaring forbidden acts not to be sinful has been regarded as heresy or even apostasy. Commentators such as Mehdi Hasan, after wrestling thoughtfully with the issues, have concluded that while they do not approve of homosexual acts, they cannot condone homophobia.

A similar message was offered by Tariq Ramadan, Professor of Contemporary Islamic Studies at Oxford, when he visited New Zealand: Muslims and others have to respect each other, which includes accepting that the law permits gay marriage.

Imam Daayiee Abdullah, seen here with Reverend Dwayne Johnson discussing religion and LGBT rights in the U.S., is openly gay. He’s argued that ‘there is nothing wrong with Quran. The problem is with how people have interpreted it.’
East-West Center, CC BY-NC-SA

For Muslims generally, as for conservative Christians, homosexual acts are sinful. It is difficult to be openly gay or lesbian in predominantly Islamic countries, but in the West, there are even (a few) gay imams.

There are also support groups for gay and lesbian Muslims. Writers such as Scott Kugle (Siraj al-Haqq) try to reconcile Islamic identity with alternative sexual orientations. Like their Jewish and Christian counterparts, they seek the “original” meaning of scriptural texts obscured by generations of patriarchal, heteronormative interpreters.

They also question the authenticity of certain hadith – in the traditional manner by scrutinising their chains of transmission – and reopen past debates such as that concerning “temporary” marriage. The latter need not be short-term and may offer an alternative framework for co-habitation without formal marriage.

Christian gays and lesbians have had to work hard for a measure of recognition among fellow-believers; their Muslim counterparts are just beginning that struggle.

---

Acknowledgement: The most useful source for this essay has been Kecia Ali, Sexual Ethics and Islam: Feminist Reflections on Qur'an, Hadith and Jurisprudence (Oneworld Publications, new edition, 2016).

Christopher van der Krogt, Lecturer in History, Massey University

This article was originally published on The Conversation. Read the original article.

From the Archives: Gay-rights pioneer Franklin Kameny remembers his civil disobedience – Part II

Gay-rights pioneer Franklin Kameny remembers his civil disobedience – Part II
December 31, 2010 2:18 AM MST

World War II veteran and gay-rights activist Franklin Kameny has been involved in civil liberties protests for almost 50 years, since shortly after he was fired by the federal government for being gay.

In an exclusive interview with the Charlottesville Libertarian Examiner last May at the National Press Club in Washington, Kameny remembered several occasions when exercising his First Amendment rights to assembly and expression led to his arrest. Three of them are recounted here.

Supreme Court steps

One memorable moment was on the steps of the U.S. Supreme Court in 1987, during that year’s gay-rights March on Washington, which, Kameny noted, “relevantly occurred one year after the Supreme Court’s decision in Bowers v. Hardwick on the Georgia sodomy law, the one that was finally overturned in 2003 by Lawrence v. Texas.”

He was part of “a sizable sub-demonstration at the steps of the Supreme Court and in those days that whole plaza in front was not open to the public. In fact, they had just opened that section of First Street to the public.

“A number of people, individually and in groups, wanted to protest vigorously on the plaza. There was a police barricade right at the top of the lower level of steps.”

The police, he said, were well-organized and, after a fashion, assisted in the protest.

“They would allow a group of protesters in and onto the plaza and then let us be there for a while and then order us away. If we didn’t go away, then they arrested us.”

Kameny’s “little group didn’t go away, so they lowered us into a paddy wagon and I spent much of the rest of the day” at the police precinct on Fourth Street and Indiana Avenue in Judiciary Square, where his arrest was processed.

He recalled that “Hardwick himself was there and I ended up paying a fine. I remember it vaguely as $50 dollars by pleading guilty and that ended that particular arrest sequence.”

D.C. City Council
He pointed out “a few other civil liberties type occasions,” including one in Philadelphia in the 1970s and specifically remembering one in 1991 or 1992, when the chair of the D.C. “City Council Judiciary Committee would not process the bill to repeal the sodomy law and eight of us had a sit-in in her office”

The eight, he said, “were arrested and I spent the rest of the day in a lock-up at the main police headquarters,” leaving late at night, paying a fine, “and that was that.”

The story does not end there:

“We got the law passed in ’93. I wrote the section of the repeal, actually, and that ended that.”

South African Embassy
A third incident that Kameny remembers did not involve a gay-rights issue.

“One time,” he said, “then-Delegate [Walter] Fauntroy and I and some others -- on not a gay issue at all -- picketed the South African Embassy.”

The time was the mid-1980s, probably 1986, when there were a series of protests against the apartheid regime then governing South Africa. A number of celebrities – actors, musicians, poets, and politicians – offered themselves up to be arrested every day for the better part of a year.

“Nowadays, on First Amendment grounds, it’s possible to picket embassies,” Kameny noted. “In those days, it was not.”

Kameny remembers the embassy demonstration resulting in his arrest, but it was something of a formality: “I don’t think I spent any time in jail.”

A bit of historical irony is wrapped up in that last memory, since South Africa's constitution guarantees equal rights for its gay and lesbian citizens, and it is the only African country that permits same-sex couples to wed.

With regard to his numerous arrests, Kameny smiled, “I consider them all honorable.”

Publisher's note: This article is drawn from my Examiner.com archives. It was originally published on Examiner.com on December 31, 2010. 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: Virginia Enters the 20th Century -- in 2005

Nine years ago this week, the Virginia Supreme Court overturned a 19th-century law that forbade cohabitation by adults who were not legally married.  The Court based its ruling, in part, on the 2003 U.S. Supreme Court decision in Lawrence v. Texas, which overturned the Lone Star State's law against homosexual sodomy.

A few days after the Virginia Supreme Court issued its ruling in Martin v. Ziherl on January 14, 2005, I wrote about the case for The Hook, a Charlottesville weekly. (See this previous post regarding another article I wrote for The Hook on a quite different topic.)

This commentary piece was originally published on January 20, 2005, in print and on line.

Fornication 86ed: Virginia enters the Twentieth Century

By Richard E. Sincere

When the Virginia Supreme Court ruled in the otherwise obscure case of Martin v. Ziherl on January 14, it belatedly brought the Commonwealth into the 20th century.

How so? The court overturned a law dating to the early 19th century, which had not been enforced since 1847, banning sexual relations between two unmarried, consenting adults. It recognized that human beings living in Virginia have a liberty interest in protecting their private relationships from governmental interference.

While the case at hand addressed "fornication" performed by a heterosexual couple, the court made clear that, should a similar case come before it, involving two persons of the same sex and the state's sodomy law (also known as the "Crimes Against Nature," or CAN, statute), it would overturn that law, too.

The Virginia court relied almost exclusively in its reasoning on the U.S. Supreme Court's 2003 case Lawrence v. Texas, which said a Texas law prohibiting sexual relations between persons of the same gender was unconstitutional.

Virginia State Capitol in Richmond

Referring to the earlier federal case, Virginia Justice Elizabeth Lacy, writing for the court, stated: " ... this same liberty interest is invoked in this case when two unmarried adults make the choice to engage in the intimate sexual conduct proscribed by Code [Section] 18.2-344. Thus, as in Lawrence, the Commonwealth's interests do not warrant such encroachment on personal liberty."

In so doing, the court swept away the rationale for a raft of laws that infringe on the rights of individuals– gay or straight, single or married– to engage in private, consensual, sexual conduct. (The ruling does not affect, the court said, "the Commonwealth's police power regarding regulation of public fornication, prostitution, or other such crimes.")

The General Assembly has, on numerous occasions, considered legislation that would have had the same effect– repealing archaic laws that have no place in a liberty-loving society. Each time the state legislators had an opportunity to modernize the Virginia code's sections dealing with sexual conduct, they let it pass by. Thus it was up to the state Supreme Court to act.

Lest certain ideologues accuse the court of "judicial activism" and of being out of synch with public opinion, two points are in order:

First, the Court's opinion was squarely in line with precedent set by the U.S. Supreme Court. Thus, it respected the principle of stare decisis. (According to Bouvier's Law Dictionary, "stare decisis" means "To abide or adhere to decided cases," adding in explanation, "It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from.")

Second, the Court's ruling reflects public opinion rather than contradicts it.

In January 2001, Rasmussen Research, an independent polling organization, conducted a statewide survey of Virginia voters to determine knowledge and attitudes about Virginia's CAN statute and related issues. Among its findings were:

* When asked "Should it be against the law for an unmarried man and an unmarried woman to have sex in the state of Virginia?" 71.1 percent of respondents answered "no," including 67.4 percent of self-identified Republicans (those voters one would most expect to answer "yes").

* When asked "Should it be against the law for a married couple to have oral sex in the privacy of their own home?" 81.7 percent said "no" (including 78.9 percent of Republicans).

* When 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?" 65.2 percent answered "yes", including 61.4 percent of Republicans.

General Assembly members have often maintained, off-the-record, that they are wary of changing Virginia's laws regulating private sexual conduct, because they think they will have hell to pay on election day if they do so. But they have nothing to fear. The Rasmussen poll also asked how voters would cast their ballots for legislators who support repeal of such laws. Overall, 82.9 percent of Virginians said that they would either be more likely to vote for such legislators, or it would have no impact on their vote.

Now, some might argue that a four-year-old opinion survey may not accurately reflect the current attitudes of Virginia voters. That may be true. But it would be up to the naysayers to provide concrete, scientifically valid evidence that proves it wrong.

The court's decision is cause for celebration by all Virginians, as it has removed one more layer of government intrusiveness from our lives. We are freer today than we were on January 13, unencumbered by unconstitutional laws that strike at the heart of our most personal liberties. At the dawn of the 21st century, Virginia is finally reconciled to the 20th.

Charlottesville resident Richard Sincere is author of The Politics of Sentiment.

Accompanying the article was this sidebar from The Hook's editor, Hawes Spencer:

As for sodomy... In 1993, a Richmond area woman, Sharon Bottoms, lost custody of her two-year-old child due to her "felonious behavior": oral sex.

Closer to home, both the Charlottesville and Albemarle Police departments utilized the "sodomy" statute in 1998 to threaten citizens with felonies. In Charlottesville, the goal was ridding West Main Street of prostitution. In Albemarle, 14 men were charged for using a restrooms at the Ivy Creek Natural Area as their little pleasure palace. So how to purify the parks?

House Bill 1054 from Dave Albo (R-Springfield) would convert an old anti-fornication, anti-cohabitation statute into a ban on sex in public places.– editor

I had earlier discussed the Bottoms case in the Free Lance-Star in 2001 and in a press release from Gays and Lesbians for Individual Liberty in 1996.

The issue is not dead. State Senator Tom Garrett (R-Lynchburg) has introduced a bill this year that would revivify the unconstitutional "Crimes Against Nature" statute in the Virginia Code, which was invalidated by Lawrence v. Texas in 2003, by amending the notorious § 18.2-361.

Garrett's bill passed the Courts of Justice Committee in the form of a substitute (the patron apparently tried to address some of the criticisms that had been leveled at his bill) and is now before the Committee on Finance for further consideration.

The comments on this bill found on Richmond Sunlight are enlightening.