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.

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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