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: Free Speech Leads to Tolerance and Prosperity

by James Devereaux

J.S. Mill was an early advocate for our current view of free speech. He wrote, “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.”

Such a rule is likely rhetorically supported in many liberal democracies, and beyond as Greg Lukianoff from FIRE notes, however there exist variations to the rule. European countries permit more restriction on speech and have adopted, by convention or individually, some form of prohibition on hate speech, no longer allowing it, unlike the American system. Hate speech as a category has always been difficult to define and is hued in ambiguity, but generally, it limits speech aimed at people based on race, nationality, ethnic origin, religion, sex, and sexual orientation. The United States has advocates intent on including this as a form of unprotected speech, a category which has been previously unrecognized.

Additionally, information from Pew shows a stronger culture of free speech in the United States when compared to other regions, reflecting the few narrow exceptions to free speech legally permitted now.

Not only is the United States an exception in terms of legal protections for free speech, a product of the First Amendment, but it embraces concepts of free speech to a greater degree than most of the rest of the world. This indicates a culture of free speech which is partially rooted in the legal protections but not solely.

To further illustrate the point that the U.S. is quite exceptional in regards to free speech, consider this survey which found the U.S. at the top of 38 nations.

What we see in the United States is not only a strong legal presumption in favor of speech but strong cultural and political acceptance of free speech as well.

The Consequences Thereof

I suspect John Stuart Mills got it right, or his version is close enough, as a matter of what speech policy yields the best outcomes. Consider this 2016 Pew Survey from their Global Attitudes Survey.

Among the polled countries, the U.S. didn’t just come out ahead, it came out far ahead with only seven percent saying that growing diversity makes the U.S. a worse place to live. This is not reported enough, in my opinion, despite the limited use.

At the very least one should be dubious, in light of this contrast, when claims are made that the U.S., unique in its level of speech protection and tolerance, should adopt the European model of speech laws.

The contrast in attitudes regarding tolerance is so stark that even the least tolerant in the United States appears to match more closely with the most tolerant in other countries. Consider the ideological analysis below parsing out how diversity is viewed within similar groups.

Though much in society, both the good and bad, is multi-factorial and difficult to parse, it appears that broad protection of free speech either does not impact tolerance or it does not increase intolerance, at least when compared to other regimes (this comparison is limited, and temporal comparisons would help draw a more certain conclusion). This may appear counter-intuitive, but I suspect two things occur that help increase tolerance as people are exposed to various types of speech, including offensive speech. First, they see the consequences of offensive or inappropriate speech and adjust their behavior accordingly. Second, they are exposed to various views and are better able to compare them against the alternatives.

The benefits of speech also extend to economic activity and human welfare. Many have extolled the value of speech in economic growth and human flourishing. From science to the exchange of ideas, to the changing view that commerce should be pursued rather than shunned- as it, as well as finance, were once viewed as second-rate economic activity, the ability to converse has been central to human progress.

Deidre McCloskey argues that rhetoric and dignity help explain the Great Enrichment, the period wherein real income, per head “increased, in the face of a rise in the number of heads, by a factor of seven — by anything from 2,500 to 5,000 percent.” No such event in history compares in terms of human flourishing. That this coincided with a rise of traditional liberal values, free speech included, appears to be more than coincidence.

Here the Great Enrichment is graphically represented from Tyler Cowen and Alex Taborrock’s Principles of Economics.

This should amaze you.

That speech is tied to economic development has an intuitive appeal when considering that much of wealth creation is done via communication. From prices to ideas, economic activity is often tied to speech, not only to find benefits but to avoid costs. Whether to find wares, move resources, or spur innovation, speech is crucial to economic growth and prosperity.

Sliding Away From Free Speech

There is a serious concern regarding the future of free speech in the United States. College campuses have become the battlegrounds for much of this cultural battle over how much speech should be permitted. Students and activists on the left and right use the Heckler’s Veto to shut down speech with which they disagree, creating an illiberal turn in our free speech culture.

This attitude appears to be spreading beyond a few activist groups. A 2015 survey found that 40% of Millennials would support bans on certain types of offensive (but currently protected) speech. This in contrast to the, somewhat ironically, low levels of support from the Silent generation, which suggests that about 12% of those polled would support bans on offensive speech.

I do want to be careful to not overstep here in concluding too much from this data. First, I think that since the concerns of the time, the so-called topic du jour, changes from one generation to another it seems likely that what once was considered a speech taboo is no longer relevant and no new taboo arose to replace the outdated one for older generations. Combined with other variables such as the perspective of having seen the positive benefits of speech, such as the end to the draft, perhaps attitudes drift towards more speech tolerance as time goes on.

Nonetheless, these illiberal anti-speech attitudes have been confirmed more recently by Brookings, where free speech was shown again to have unusually low support from college-age adults, not only endorsing bans on speech but demonstrating support for heckling and interrupting a speaker with whom you disagree.

Which again turns us to the culture of free speech. Free speech is as much a cultural phenomenon as it is a legal guarantee. Make no mistake, I believe the fact that the United States is foremost in speech protection and tolerance is closely related, a reflecting glass of sorts, where our moments of speech antagony are met with the protections of the First Amendment allowing us to culturally realign with the underlying message and expand tolerance towards each other and diverse, even wrong, ideas.

However, an illiberal cultural development is possible. We have seen it time again with free trade. Despite the overall benefits, we continue to find anti-trade attitudes bubbling up into our politics and policy, pushing away long-term economic development to alleviate the fears that a few may lose employment. Same is true for the Luddites among us who insist that efficiency and prosperity is a poor trade-off for a static employment regime and scarcity, and wage war against automation.

It is to our benefit to remember that speech brings varied, hard-to-replicate benefits to ourselves and society. Recently, the great American classic, To Kill A Mockingbird was banned in a Mississippi school district as the racially tinged language “[made] people uncomfortable.” It is hard to argue this book has not brought net benefits to many, including myself, despite the fact that it may induce discomfort. So it is with speech. Indeed there are downsides, but they are far outweighed by the benefits, which stretch unseen into our relatively prosperous lives.

Reprinted from Medium

James Devereaux is an attorney.  All views are his own and not representative of employers or affiliations.

This article was originally published on FEE.org. Read the original article.