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.

'An Absolute Right'

In a Washington Times article today about the bloody, unfortunate killing of one Fairfax County police officer and the serious wounding of another in a shoot-out with an 18-year-old last week, longtime Fairfax County Commonwealth's Attorney Robert F. Horan, Jr., was quoted as saying:

"That's America. You have an absolute, unqualified constitutional right not to talk to police if you don't want to."

This quotation should be emblazoned in every high school civics textbook. We have to remember, the Bill of Rights is for everyone, not just those who were smart enought to be paying attention in class.

No one should ever submit to interrogation by law enforcement officials without first insisting that an attorney be present, and no one should ever say a word until that attorney arrives. When the police read a suspect his Miranda rights, they are not kidding when they repeat "Anything you say will be used against you in a court of law."

Young Alan Newsom and his parents learned that at their peril, since he was convicted of a serious crime solely on the basis of a statement he made to police without an attorney present. As reported last week in The Hook,

Attorney Bill Hicks has insisted his 15-year-old client was convicted solely on his statement to police, which took place without legal counsel or his parents, an interrogation so stressful that the boy "would have confessed to the Kennedy assassination," his father says.

The Fourth and Fifth Amendments are there for the protection of all of us, guilty and innocent alike. The Founding Fathers did not put them in the Constitution for cosmetic reasons. The Fairfax Commonwealth's Attorney knows this; I'm not so sure about prosecutors and ex-prosecutors elsewhere in the state.

On the Banks of the Wabash

In his syndicated column today, George F. Will points to Indiana as an example of how libertarian conservatives can have a genuine, positive effect on government by reining in its size and scope.

Writing in the Washington Post in a piece entitled "Indiana's Book of Daniels," Will points out the divide in the Republican party and conservative movement between social conservatives, who want to use social engineering to control the lives of citizens, and libertarian conservatives, who don't. Referring to Indiana Governor Mitch Daniels, who was once a high-ranking official in both the Reagan and Bush 43 administrations, Will says:

In the division between social conservatives, who emphasize nurturing virtue, and libertarian conservatives, who emphasize expanding liberty by limiting government, Daniels is with the latter. For example, regarding immigration, an issue that dramatizes this division, many social conservatives are restrictionists, but Daniels, whose state's population is, he says, "getting older and not growing," welcomes immigrants, who usually are "young people with dreams -- a good development."

Will provides several concrete examples of how Daniels has cut Indiana's state budget. The individual items may seem trivial, but as Senator Everett McKinley Dirksen once said, "a billion here, a billion there, pretty soon you're talking about real money."

Ending bottled water for employees of the Bureau of Motor Vehicles (annual savings, $35,000).

Ending notification of drivers that their licenses are expiring; letting them be responsible for noticing (saving $200,000).

Buying rather than renting floor mats for BMV offices (saving $267,000 this year).

Initiating the sale of 2,096 surplus state vehicles (so far, $1.95 million in revenue from 1,514 sales).

Changing the state lottery's newsletter from semimonthly and in color to a monthly and black-and-white (annual savings, $21,670).

And so on, and on, agency by agency.

Nor is Mitch Daniels the only Indiana politician who cares about cutting spending to sensible amounts. Representative Mitch Pence (whom I have cited elsewhere), is trying to bring responsibility to the federal government, too:

What is it about Indiana? In this annus horribilis for conservatives, one of their few reasons for rejoicing has been the ascent to influence in the U.S. House of Representatives of the Republican Study Committee, more than 100 parsimonious members under the leadership of Mike Pence, a third-term Hoosier from a few miles east of here. The RSC's doctrine, a response to a one-third increase in federal spending during the current president's first four years, might be called Danielsism, which is: There is more to limited government than limiting its spending, but there will be nothing limited about government unless its spending is strenuously limited.

This tenet of traditional conservatism, although more frequently affirmed than acted on, is producing fresh plans for action. A 24-page RSC proposal calls for rescinding $25 billion in pork spending from the transportation bill, saving $30.8 billion by delaying for one year the start of the Medicare prescription drug entitlement, and much more.

Will suggests that political leaders like Daniels and Pence are learning from the intellectual libertarian movement, represented by organizations like the Cato Institute and Reason Foundation. He cites the former editor of Reason magazine, Virginia Postrel, as an influence on what he calls, not pejoratively, "Danielsism":

Daniels believes that Danielsism, far from being an exercise in small-mindedness, actually serves a large vision. He subscribes to a distinction made by Virginia Postrel in her book "The Future and Its Enemies" -- the distinction between advocates of stasis and advocates of dynamism. The former believe in managing the unfolding of the future.

The latter believe in minimal management of that unfolding; hence they believe in minimizing government, which has a metabolic urge to manage and a stake in preserving the status quo that government's bureaucracies are comfortable serving.

In the introduction to her book (an autographed copy of which sits in the libertarian section of my home library), Postrel explains more fully the difference between stasism and dynamism:

... Static visions depend on hiding the connections between disparate aspects of life. My purpose is to expose them. Stasists gain credibility by treating dynamism as a shallow fad. My aim is to reveal its rich heritage. Stasists thrive by issuing prescriptions that ignore the details of life, believing that details are unimportant, the stuff of anonymous specialists, and can safely be ignored. My goal is to encourage respect for those details, even when they can only be evoked in passing. Piling up widely divergent examples, reflecting a tiny sample of the plenitude of life, is one way to do that.

Stasist social criticism -- which is to say essentially all current social criticism -- brings up the specifics of life only to sneer at or bash them. Critics assume that readers will share their attitudes and will see contemporary life as a problem demanding immediate action by the powerful and wise. This relentlessly hostile view of how we live, and how we may come to live, is distorted and dangerous. It overvalues the tastes of an articulate elite, compares the real world of trade-offs to fantasies of utopia, omits important details and connections, and confuses temporary growing pains with permanent catastrophes. It demoralizes and devalues the creative minds on whom our future depends. And it encourages the coercive use of political power to wipe out choice, forbid experimentation, short-circuit feedback, and trammel progress.

... A word about terminology: Stasis and dynamism are ordinary words, and I use them in a fairly ordinary way, to represent stable or evolving states. The only variation from the conventional meaning is that I use dynamism more precisely, meaning not just change but evolution through variation, feedback, and adaptation. Stasis and dynamism may be actual or envisioned states; their qualities, in either case, are described as static or dynamic. The coined words stasist and dynamist -- which, like feminist or socialist, may be either nouns or adjectives -- refer to intellectual positions and the people who hold them. A dynamist is one who supports dynamism.

For readers who would like more informaiton about the ideas in this book, I have established a Web site at www.dynamist.com.

Using the categories of "stasist" and "dynamist" is not the same as assigning the values of "right" or "left" or "conservative" or "liberal." In Postrel's typology, someone like Pat Buchanan, an icon of the right, is a stasist, as is left-wing thinker Jeremy Rifkin. Wal-Mart bashers, like documentary film director Robert Greenwald, are stasists, as are city and county officials who were among the few who were pleased by the Supreme Court's decision about eminent domain in Kelo v. City of New London, and just about anyone who subscribes to the NIMBY view of life.

Dynamists include people like Wal-Mart founder Sam Walton, author and public intellectual Jane Jacobs, and Peruvian economist Hernando de Soto.

Science writer Ron Bailey addresses some of these same issues in his new book on advances in biotechnology and the opposition they face. As noted in a recent issue of The Hook,

If you're like most people, you probably avoid talking about politics and religion. Well, Charlottesville journalist Ron Bailey isn't most people. In fact, he relishes biotechnology debates-- and they usually involve both religion and politics.

As the science correspondent for Reason magazine, Bailey often finds himself extolling the merits of cloning, euthanasia, and harvesting stem cells. And in his most recent book, Liberation Biology: The Scientific and Moral Case for the Biotech Revolution, he addresses pretty much every touchy subject in the field.

The book, released in July, attacks both the Academy and the Administration. Bailey goes after prominent Boston University bioethicist George Annas for his "precautionary principle" as well as Dr. Leon Kass, the former head of the President's Council on bioethics.

"The Bush administration doesn't much care for me," says Bailey.

What exactly is it about the man that compels him to endorse such unpopular subjects?

"I'm a technological optimist," says Bailey, "and a lot of people-- both left-wingers and right-- focus only on the bad possibilities of science. We create these scary monsters that never come true."

A few weeks ago, I saw Bailey speak before an audience at the University of Virginia, in a lecture sponsored by Students for Individual Liberty, and he gave an entertaining outline of his book based upon his original subtitle (rejected by the publisher): "Why You Should Relax and Enjoy The Brave New World of Immortality, Stem Cells, and Designer Babies." His remarks were both provocative and informative.

But back to the main point: We certainly need more dynamists in public office, so my hat, like George Will's, is off to Indiana Governor Mitch Daniels.

Fever

If you've been wondering about the paucity of posts in the past few days, here's at least a partial explanation: From last Thursday through Sunday, I was attending the Virginia Film Festival in Charlottesville. Over that four day period, I sat through 16 separate screenings of new and classic films, some of which included panel discussions with the filmmakers or experts on the movie or the period in which it was made.

As I mentioned to festival director Richard Herskowitz after the final screening -- the world premiere of Mrs. Palfrey at the Claremont, starring Dame Joan Plowright -- if someone watched 30 or 35 hours of television over four days, it wouldn't have much of an effect on him. But watching 30 or 35 hours of movies in a darkened theatre over the same period is far more intense and draining. Watching film requires far more attention, concentration, and focus than watching TV does. It is far more engaging intellectually and emotionally.

So it came as no surprise to me that, after the festival was over, I went straight to bed. What did surprise me is that I ended up sleeping all through Monday, finally waking up just before the 11:00 p.m. news. The whole day had gone by and I hadn't felt any time at all.

Now that I'm recovered sufficiently, I can write a few words about the festival, retaining the option to write more over the next few days. Some of what I write will later appear in The Metro Herald, through whose good graces Tim Hulsey and I obtained press credentials to cover the festival. (Thanks also to festival publicists John Kelly and Cara White, who could not have been more helpful during a weekend of much pressure and huge responsibilities.)

The weekend began with a screening of The Fever, a new film starring Vanessa Redgrave and featuring Michael Moore and Angelina Jolie in small supporting roles. The Fever was directed by Redgrave's son, Carlo Nero, and financed by HBO, which will broadcast it early next year.

The Fever is an unremitting, unveiled attack on Western democratic capitalism. In Redgrave's words, anyone who earns a middle-class income or more lives a life of unredeemable corruption. The Fever actually shows Redgrave's malaise-besieged character reading Karl Marx's Capital and being transformed by it the way a normal person might be transformed by reading Atlas Shrugged.

The movie was met with warm applause by the hundreds of academics, film lovers, and other guests at the Culbreth Theatre at the University of Virginia. Disgusted as I was by the leftist politics of The Fever, I could easily have left quietly. Quietude, however, is not in my nature.

So I stood up during the discussion period, moderated by Herskowitz and featuring Redgrave, Nero, and Jason Blum (rhymes with plum), the movie's primary producer, and asked:

"I don't want to be cheeky, but it seems to me that the underlying philosophy in this film represents an old-fashioned [I should have said anachronistic] and ahistorical view of economics as a zero-sum game. Have any of you ready any books about economics published after 1945?"

I wasn't really looking for an answer; I was trying to make a point. Redgrave did answer, however, saying she had read books by Jeffrey Sachs (meaning, I think, his new book The End of Poverty) and George Soros (who has done a wonderful job rebuilding civil society in the former Soviet empire but whose views on economics can best be summed up as "I've got mine, sorry you can't have any more yourself"), and the UNDP (United Nations Development Program) Report, which has "hundreds of sources." When I suggested, in return, "Friedrich Hayek?", I was met with blank stares by the panelists.

In reporting on my question, the Daily Progress said:

One audience member questioned Redgrave’s simplification, both as an actress and as a person, of the issue of poverty. He asked Redgrave if she had read any economics books published after 1945.

Redgrave responded by listing a handful of texts and said, "I don’t think it’s old-fashioned to care."

No one said caring is wrong, of course. Compassion is an important emotion-cum-virtue. Nevertheless, compassion, like any other emotion, should not be permitted to overwhelm rationality. (Perhaps I should have asked Redgrave if she's ever read Plato's Republic.)

It is "old-fashioned," in the sense of anachronistic, to think that for you to be rich, I must be poor, and vice versa.

My question caused quite a stir, since at events like this (I suppose) everyone is supposed to fawn over the celebrities.

While trying to leave the auditorium, I was approached by one man who thanked me for asking my question, and as we chatted, we drew a crowd around us. A young woman accused us both of being "middle class, white males" who couldn't get "outside [our] minds." Tim Hulsey asked how it is possible to be outside one's mind, and I suggested that possibility would be schizophrenia.

I thought it would end there, but Tim told me that at a screening the next morning, he overheard two other people talking about my question, and on Saturday night, while I was chatting with an on-line friend who asked if I had been attending the film festival, I indicated I had asked a "dissenting question" at the Redgrave event. He asked, "Did you ask if she had read any post-war books on economics?" I said yes, I had, and asked if he had been there. No, he said, but he had heard about it from someone who was there.

The Fever wasn't the end of my tiny battle with the left. On Sunday I saw an excellent new German film called Sophie Scholl: The Final Days, which tells the story of a courageous young woman who was executed by the Nazi regime for daring to dissent. This is a great movie and I recommend it highly, both for its content and for its dramatic structure.

In the audience discussion afterwards, I brought up the point that the movie has relevance for today because "things like this happen every day in places like North Korea, China, and Cuba," to which the moderator -- an academic whose name I did not write down -- replied, "You mean Guantanamo."

"No," I said, "I mean Havana."

"Guantanamo," he insisted.

"There are no guillotines in Guantanamo," I added (a reference to the final scene in the movie).

"I know something about the Caribbean," the academic said, "and I guess we'll have to agree to disagree."

I can only imagine the dinner-table conversation that night, when that "scholar" said to his wife and kids, "You can't believe what I heard today: Some crazy guy compared Hitler to Castro and the Cuban government to Nazi Germany!"

Well, yes.

Thursday update: The Hook, like the Daily Progress, has reported on my "cheeky" question posed to Vanessa Redgrave. Here's how Lisa Provence reports it in today's edition:

"Have any of you read a book about economics since 1945?" Local Richard Sincere, an alum of the London School of Economics, causes a stir after the screening when he poses that question to Redgrave and Nero. To which Redgrave responds, "I don't think it's old-fashioned to care as much as ever." Insert audience applause here.

It's not exactly what I said, but close enough to catch the flavor of the moment.

Update on Trespasser Rich Collins

Apparently Coy Barefoot, author of The Corner: A History of Student Life at the University of Virginia and Thomas Jefferson on Leadership has joined the on-air staff of WINA radio.

At least it was Barefoot's voice reporting that the ACLU has taken on the case of 57th District House of Delegates candidate Rich Collins, who was arrested for trespassing (a Class 1 misdemeanor) after he refused to leave the privately-owned Shoppers' World shopping center after being asked to do so by the property owners.

The WINA web site summarizes the report:

There's a new development in the saga that involves a local candidate for the General Assembly. WINA News has learned the Virginia ACLU will champion the cause of House of Delegates candidate Rich Collins. Democrat Collins has been out campaigning for the 57th District House seat, and he found out the company that manages Shoppers' World frowns on that activity. The retiring UVA professor was charged May 7th with a misdemeanor offense of trespassing on private property. Collins will appear in Albemarle General District Court on July 5th.

We reported on Collins disrespect for private property and the rights of property owners on May 15. The Hook had an extensive report on the case in its May 19 edition, noting that the ACLU was attentive to Collins' plight:

"We're obviously interested in the case," says Kent Willis, head of ACLU of Virginia. A research committee will make an initial decision, and the case would have to be approved by the ACLU board when it meets May 21.

In Robins v. Pruneyard [sic], the Supreme Court decided that political speech protected by the first amendment applies only to public property, explains Willis-- but states are free to write their own laws to extend that protection to shopping malls, which California had done.

"We'd ask the Virginia Supreme Court to interpret free speech rights on private property," says Willis. "If town centers have disappeared and are replaced with shopping centers and malls, we're looking to extend those rights to shopping centers and malls."

If "town centers have disappeared," they certainly have not done so in Charlottesville.

In fact, Charlottesville -- all of which is in the 57th District -- provides one of the best examples of reviving the agora, the public square, in the form of its downtown mall. Not only does the bustling pedestrian mall extend for more than 10 blocks smack in the center of town, it is going to be the site of a gargantuan chalkboard that will be a living monument to the First Amendment, a place where anyone can write anything they want to comment on politics, culture, the arts, or neighborhood gossip. The chalkboard will also have a podium, representing the old-fashioned soapbox on the street corner that even today symbolizes freedom of speech. Billionaire John Kluge recently gave a substantial contribution to underwrite the First Amendment monument, and Oscar-winning actress Sissy Spacek emceed a fundraiser at the Paramount Theatre that raised $17,000 for it. The monument is a project of the Thomas Jefferson Center for the Protection of Free Expression.

In addition to the downtown mall, Charlottesville also boasts an extensive network of city parks: McIntire Park, where the Fourth of July fireworks take place each year; Azalea Park, Lee Park (named after Robert E. Lee), and Washington Park (named after Booker T., not George, Washington), to name just a few of the 23 parks within Charlottesville's 11 square miles.

Perhaps there is some other community in the country, even in Virginia, where all (legally and technically and practically) public spaces have been absorbed or erased by private property owners. We are blessed with plenty of public spaces in which to assemble and exercise our rights to free speech.

Virginia Enters the Twentieth Century

My friends at The Free Liberal were kind enough to publish this piece, written in response to last week's Virginia Supreme Court decision that declared the state's fornication law unconstitutional. The article is also scheduled to appear in The Hook on Thursday, January 20.

Virginia Enters the Twentieth Century
Richard E. Sincere

(Charlottesville) — 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.

Referring to the earlier federal case, 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.

* * * * * * * * * * * * * * * * * *

Richard Sincere is author of The Politics of Sentiment. His political and cultural commentary can be found at www.RickSincere.com.



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More on the Virginia Family Values PAC

As expected, Thursday's issue of The Hook arrived in boxes and store lobbies around Charlottesville with a story about the Virginia Family Values PAC. Headlined "Whose values? Lefty PAC fights for families," the article by Courteney Stuart has some precious reactions from two of the PAC's targets, Delegate Dick Black and Delegate David Albo (both from Fairfax County).

Stuart reports that

Black stands behind his positions and his actions, and criticizes the group.

"Essentially they are a homosexual and abortion group that are trying to use a deceptive title," he says. "The problem with liberalism is that it rests on a foundation of sand," he adds. "Liberals are constantly running away from who they are. They don't want to say that they are for unnatural sex acts and the killing of children; they want to say they're for family values. I have no problem with someone who says what they stand for."

At the same time, Albo demonstrated the puzzlement similar to mine about his inclusion among the targets:

Told of the group and its website by a reporter, Delegate Albo expressed shock that he'd be included.

"It's so outrageously ridiculous," says Albo, who says he was aware of criticisms about his massive crime overhaul, HB 1053 but says the bill was reviewed extensively by attorneys at the Crime Commission, the Attorney General's office, Legislative Services, and in the Courts of Justice Committee.

"Not a single one could figure out what they [critics] were talking about," Albo insists.

Further, Albo's bill would retire Virginia's so-called "fornication" statute which has long criminalized non-marital sex. And Albo says he voted in support of the "morning after" pill.

"Either they're confused," says Albo, "or they're really just a front for a Democrat political action committee." After noticing a large photo of Greg Werkheiser, his future Democratic opponent in the 42nd-district on the site, Albo says he believes it's the latter.

Curiously, however, after the Virginia Family Values PAC started to get some press attention, Albo, together with Democratic Delegate Chap Petersen, introduced a bill to clarify last year's Marriage Affirmation Act (known during the last General Assembly as HB 751, a number that lives on in infamy). Here's the key section of the proposed law (HB 2490), with the additions in italics:

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable. The provisions of this section shall not abridge the right of any person to enter into a lawful contract that pertains to the ownership or devising of joint property, the maintenance of personal health, or the protection of private assets.

On a related note, Roanoke-based libertarian writer Brian Gottstein published a column on Wednesday called "Bills before the General Assembly that could change your life." He points to several pieces of proposed legislation that will help remove the claws of government from our backs.

Among the bills he cites are:

HB 1016 - ALLOWING GROUP INSURANCE COVERAGE TO INCLUDE NON-SPOUSES - This bill will change the law from excluding to allowing insurance coverage under a group health and accident policy to be extended to any person whom the insured group member elects, provided the extension of coverage is agreed to by the insurer and the group policyholder (Ahh, the free market at work!)

The measure also allows coverage for children who are older than 19. Currently, Virginia insurance regulations forbid insurers from offering coverage to insureds’ dependents other than spouses or children under the age of 19 (or age 25 for full-time students).

Many conservatives are concerned that this is a Domestic Partner Benefits program for homosexual partners in Virginia, but it benefits more than just that group. This bill could help people who have to take care of sick parents, relatives or unrelated children. . . .

SB 736 - REDUCES ESTATE TAXES - Eliminates Virginia’s estate taxes on estates under $10 million, or closely-held businesses and working farms.

The ultimate taxation without (self-) representation, estate taxes are very large taxes that the state and federal governments collect from you after you die and can’t complain about them. Sure, you’ve already paid income taxes, property taxes, sales taxes, and many other taxes on your money and property during your lifetime, but this is one last grab from government. The taxes are due nine months after your death, and often the family business or family farm has to be sold to pay them, because your survivors don’t have the cash to cover them. Morally, estate taxes should be eliminated completely for any size estate. . . .

SB 477 - SODOMY - Provides that sodomy is not a crime where all persons are consenting adults who are not in a public place and not engaged in prostitution.

These bills have been in front of the General Assembly for years. Finally let’s get the government out of our bedrooms! Although some sexual acts may be distasteful to you, the government shouldn’t be breaking down bedroom doors to make sure consenting adults aren’t engaging in them.

HB 587 - GIVING YOU YOUR MONEY BACK - REFUND OF SURPLUS FUNDS - Requires the state to refund surplus tax revenues to taxpayers when the surplus exceeds the amount required to be deposited in the Revenue Stabilization Fund (a.k.a. “the rainy day fund") by at least $50 million.

To that list I'd add HB 826, patroned by Delegate Terrie Suit, which helps level the playing field between property owners and government "authorities" that use eminent domain to condemn property even when it is not for "public use" as traditionally defined. This bill is intended to strengthen a now-weak Virginia "Landowner's Bill of Rights."

All of these bills are worthy of consideration. If you live in Virginia, be sure to write to your state Senators and Delegates and ask them to vote for the taxpayer's interest, not the tax-absorber's interest.



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Virginia Family Values PAC?

Earlier today, I received a call from a reporter for The Hook (a Charlottesville weekly) to comment on a new organization called the Virginia Family Values PAC. She asked me to look at the group's web site and tell her what I thought. (She was seeking out a "libertarian" opinion, but I explained that I'm a Republican activist as well as a libertarian.)

The organization is not what you think. It's been set up to target for defeat those that the PAC considers to be the farthest right-wing members of the General Assembly.

Here are their targets:

Targeted Races

The below are ranked by asininity, from greatest to least. (With the understanding that these guys are all grade-A nutcases.)

Del. Bob Marshall (R-Loudoun/Prince William)
Bob Marshall is the looniest of the looney tunes in the House of Delegates. "Crazy bastard" is probably the best phrase. He still calls female university students "co-eds." He refers to sex between college-aged adults "frat boy antics." He calls birth control pills "sex pills," and has tried repeatedly to get them banned from colleges. As the Virginian-Pilot wrote in an editorial (05/04/2003), Marshall was a harmless lunatic when he was elected a decade ago. Now he's mainstream, not because he's changed, but, terrifyingly, because he's surrounded himself with more and more fellow loonies.

Del. Dave Albo (R-Springfield)
Albo -- we swear we're not making this up -- introduced a bill in the 2004 session that would reduce raping one's own child from a felony to a mere misdemeanor (HB 1054). What the hell? He's generally opposed to sex, like these other guys, but apparently doesn't mind it quite so much when it's a father sodomizing his toddler.

Del. Dick Black (R-Loudoun)
In a "craziest bastard" race, it'd be a close tie between Marshall and Dick Black. Black thinks that sperm is a child, and should be protected accordingly. He thinks that birth control of all types -- the pill, IUDs, condoms, whatever -- should be illegal. He calls them "baby pesticides." He opposes government spending to promote the use of any birth control.

Del. Bob McDonnell (R-Virginia Beach)
Sen. McDonnell isn't satisfied living a sexless life down in Virginia Beach, or even enforcing his opposition to a healthy sex life in his capacity as the chairman of the House Courts of Justice Committee. No, McDonnell would like to be the Virginia Attorney General, and is looking for the Republican nomination to be their candidate. His memory may be a problem though -- after all, he "can't recall" if he's ever engaged in oral or anal sex. Say, Bob? You're not being straight with us, are you?

The reporter had spoken to Dave Albo, who was "baffled" by his inclusion on the list (as was I). Albo was awkward and ineffective in last year's General Assembly session when the legislature considered bills to repeal the Virginia Crimes Against Nature statute in the wake of the Supreme Court's decision in Lawrence v. Texas, but what he did was not malicious, nor was it indicative of an unseemly obsession with other people's sex lives. In the past, Albo has spoken at meetings of Log Cabin Republicans (I know, because I was there, and I asked him a question about Virginia's weak-kneed, toothless charter-schools law). His fumbling of sodomy-law reform is not a reason to put him in the same category as Marshall or Black.

The new Virginia Family Values PAC seems to have taken its cue from South Park in terms of its clever effort at subversion on behalf of authentic family values. (To be fair, South Park uses vulgar language and situations to build an argument for essentially conservative values. This new PAC does not use that strategy but, still, there is no question but that the Virginia Family Foundation will have a cow over this.)

Here's what I mean. Dated January 9, the group's initial press release uses buzzwords that are sure to catch the attention of Goldwater Republicans like myself:

Virginians from across the commonwealth today announced the formation of a non-partisan political action committee to strengthen family values and families' political influence in Richmond and in the November elections. . . .

Virginia Family Values has named four of the candidates that they'll be targeting for removal from office for their anti-family votes: Delegate Bob Marshall (13), Delegate Dave Albo (42), Delegate Dick Black (32), and Delegate Bob McDonnell (84). All four candidates have consistently voted against family and parental rights, and have introduced bills that would increase the size of government while decreasing family freedoms and privacy.

"The family is the foundation of our society," explained PAC founder Waldo Jaquith. "Every time that these legislators have been given the choice between family values and bigger government, they've chosen wrong. They're way out of touch with Virginia values, and we intend to show them the door."

There is little on the PAC's web site that indicates precisely how they are going to target these four Delegates. Will they be supporting Republican primary challengers? (By my estimation, this would be their best strategy, since all four are in safe Republican districts.) If they wait until the general election and support Democratic challengers, will they be able to find other organizations of a common mind to catalyze contributions in sufficient numbers to mount a successful campaign?

I was frank with The Hook's reporter: I said that Bob Marshall is an embarrassment to the Republican Party. As puzzled as I was by David Albo's inclusion in the list, I thought it was unfair, as well, to include Bob McDonnell. McDonnell, despite his famous "Not that I can recall" gaffe, does not seem to be as pathologically sex-obsessed as Black and Marshall.

It's rare to see a group made up of Democratic and liberal activists -- Waldo Jaquith narrowly failed in a bid to get the Charlottesville Democrats' nomination to a City Council seat in 2002, and everyone expects him to return someday and become politically active in city politics once again -- using terms like "RINO" to describe Republicans like Marshall, Black, et al., for whom "RINO" is more accurate than they would be willing to admit. What a pleasure it would be if more Democrats wanted to rid our legislatures of RINOs and replace them with authentic, small-government, Goldwater conservatives.

Will that ever happen? An army of snowmen will reign in Hell before it does.



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Folkskunde Returns! (at least temporarily)

Charlottesville has a quite vibrant music scene, whether one prefers classical, choral, jazz, rock, pop, bluegrass .... name your genre, Charlottesville has it.

One of the more interesting and talented young bands to emerge in recent years has been Folkskunde, which fits the classic definition of "garage band" -- in all the best senses of the term. Folkskunde originally came together to play in the fringe area of the Live Arts Summer Theatre Festival. Several of its members are also actors who have appeared in both Live Arts main stage productions and in LATTE productions (that's the Live Arts Teenage Theatre Ensemble, Live Arts' educational arm).

Because Folkskunde's members left high school and moved on to colleges around the country, the group disbanded. Yet an email arrived to say that Folkskunde is reuniting for two performances during Christmas break:

December 22
At the Gravity Lounge
"Song-Off With Folkskunde & Friends"
Each of the members of Folkskunde will be playing their solo repertoires (the songs they've been producing while apart) as they partner with each other and various musician friends.
Door opens at 7:00 PM
$5 Door
www.gravity-lounge.com

January 7
at Starr Hill
"Folkskunde Reunited!"
Back in full force and ready to rock the night away! A rare appearance before they have to head back to college for the next semester. You won't want to miss it!
Opening for Folkskunde: Body 4 Karate and TRMNSPRX
Door opens at 8:00 PM
$5 Advance/$7 Door
www.starrhill.com

Folkskunde consists of Adam Smith, Justin Wolf, Malcolm Perkins, Jacob Wolf, Conner Lacy and Tucker Duncan. Each member writes his own music, which the band performs, and the band as a whole shows a remarkable capacity for improvisation, whether playing on stage as Folkskunde-in-concert or simply backing up poetry readings at the monthly Poetry Lounge (also just ended after nearly two years of gracing the Charlottesville arts scene).

A review earlier this year in The Hook said: "Folkskunde is rarity in local recorded music. It's daring and most importantly, it's fun, a nice break from the monotony of all this hard core jazz that has gotten to be a little bit out of control."

You'll be hearing about Folkskunde again, whether from the band as a whole or from each individual member.



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