Last edited: August 10, 2004

The Sensibilities of Our Forefathers

The History of Sodomy Laws in the United States

By George Painter
© Copyright, George Painter 1991-2002

Virginia

"This character of evil conduct is the vice of low and depraved natures, and instances of it appear to have been notably rare in this jurisdiction."

The Colonial Period, 1607-1776

The first charter granted by King James I to the Virginia colonists¹ in 1606 contained a provision that all residents of the Jamestown colony "shall have and enjoy all liberties, franchises, and immunities" the same as residents of England.² The ruling councils were given authority to enact laws, but English laws were not considered in force.³

In 1607, shortly after the first settlement of Jamestown (initially settled only by men), there were reports of sailors stealing food for which they traded sexual favors.⁴

In 1609, the English government increased the powers of the Virginia government and the local government, in turn, gave vast power to Lord Delaware, the colony’s lord-governor.⁵

Sodomy apparently became common because, in 1610, a military order was adopted stating that

[n]o man shal [sic] commit the horrible, and detestable sinnes of Sodomie upon pain of death[.]⁶

It is not known if this regulation ever was enforced.⁷

A revised charter from 1611⁸ granted by King James I made reference to "most vile and slanderous reports" coming from Virginia that bring the "plantation into disgrace and contempt."⁹ The new charter gave the power to the colony’s rulers over "notorious misdemeanors" and "indecent carriages" as they would be handled in England.¹⁰

In 1618, the military order banning sodomy ended when martial law was terminated upon the change in control of the Virginia Company.¹¹

A new charter granted in 1621¹² created a semi-autonomous government for Virginia. The government was charged with

first and principally...the advancement of the honour and service of God, and the enlargement of his kingdom against the heathen people.¹³

as well as

maintaining the said people in justice and christian conversation amongst themselves.¹⁴

The new House of Burgesses could enact laws subject to an absolute veto of the Governor¹⁵ as well as disapproval by the English Parliament.¹⁶ The laws were required to

imitate and follow the policy of the form of government, laws, customs, and manner of trial, and other administration of justice, used in the realm of England, as near as may be even as ourselves, by his majesty’s letters patent, are required.¹⁷

This section required the colony generally to mimic laws of England if it adopted laws, but did not expressly adopt all laws of England. Thomas Jefferson, in his writings on early Virginia history, stated that

[t]he laws of England seem to have been adopted by consent of the settlers, which might easily enough be done whilst they were few and living all together. Of such adoption, however, we have no other proof than their practice[.]¹⁸

In 1623, the Virginia Company tottered on the verge of bankruptcy and the charter was revoked. This action made Virginia, as of early 1624, a royal colony ruled by a committee of 40 men appointed by the Privy Council in England.¹⁹ Whether this was considered to have reinstated English law in the colony is not known.

This point is important because a man lost his life when convicted of sodomy. In 1625, Richard Cornish was hanged in Virginia after he was accused of forcibly sodomizing another man.²⁰ The alleged victim, William Cowse, was referred to as a "rascally boy" and two men who knew both individuals claimed that Cornish was convicted wrongfully. Both were punished severely for their statements.²¹

In 1629, the Virginia courts were faced with the case of Thomas Hall, an alleged hermaphrodite sometimes known as Thomasine Hall. Hall dressed as a woman to obtain sex, apparently from men, since he stressed that he had "a piece of a hole." Hall was punished by being required to wear both men’s and women’s clothes.²²

In 1659, the Virginia House of Burgesses declared themselves the supreme power in the Virginia Colony until and unless contrary directions came from England.²³

Any ambiguity as to what laws were in effect disappeared with the passage of a statute in 1661²⁴ that pledged the colony to "addhere [sic] to those excellent and often refined laws of England, to which we profess and acknowledge all due obedience and reverence[.]"²⁵ This law was enacted after the restoration of royal rule in England in 1660.

In 1673, all of the Virginia colony was given to two nobles as a proprietary colony, the grant initially to last 31 years, but the crown regained the colony well before then. It is unclear if English law would have been suspended during this time.²⁶

Period Summary: Virginia, the first of the English colonies to be founded, apparently did not recognize sodomy as a crime except for less than a decade, and then as a military regulation. Early reports from the all-male colony showed sexual activity, but there appeared to be no suppression of it. A man was hanged for sodomy in 1625, but the authority for the prosecution remains unclear. It was not until 1661 that English laws specifically were adopted in the colony. Thomas Jefferson commented that there is no proof that English laws were followed in the colony prior to that time.

The Post-Revolution Period, 1776-1873

In 1777, Thomas Jefferson and others worked on a proposed new criminal code for Virginia in anticipation of the success of the American Revolution. The proposed new sodomy law would have eliminated the death penalty and replaced it with castration for males and the boring of a hole through the nose of a woman. The proposal did not become law, but clearly showed that women were subject to prosecution under current legal thinking.²⁷

In 1792, when Virginia enacted its first sodomy law,²⁸ it still was not ready for the removal of the death penalty. The law did, however, make certain that women were liable to prosecution. The new law read

That if any do commit the detestable and abominable vice of Buggery, with man or beast, he or she so offending, shall be adjudged a felon, and shall suffer death, in the case of felony, without the benefit of Clergy.²⁹

This law makes it clear that a woman could not be a victim of sodomy, but could be a perpetrator.

In 1800, the Virginia legislature showed its willingness to reduce the penalty for sodomy, but only for some people. A new statute³⁰ set a penalty of 1-10 years for free persons committing sodomy either as principal or as accessory, but did not reduce the death penalty for slaves.³¹

A book published for justices of the peace in 1810³² gave legal and historical information on various crimes and prescribed indictment forms. Despite the broader wording of the 1792 and 1800 sodomy laws, it appears that there was a stereotyped belief among authorities as to how sodomy was committed. The "Indictment for Buggery" provided that

[name of defendant]..., labourer, not having the fear of God before his eyes, nor regarding the order of nature, but being moved and seduced by the instigation of the devil, on the ____ day of ____ in the year of our Lord ____ with force and arms, at the county aforesaid, in and upon one ____ a youth about the age of ____ years, then and there being, feloniously did make and assault, and then and there feloniously, wickedly, diabolically, and against the order of nature, had a venereal affair with the said ____ and then and there carnally knew the said ____...³³ [Emphasis is the book’s].

Thus, sodomy was perceived as always being accomplished by force, against a minor, and by a member of the working class.

The first reported sodomy case in Virginia was Commonwealth v. Thomas,³⁴ from 1812. The General Court of Virginia voted 8-0 against Thomas’s contention that emission of semen had to be proven to establish the crime.³⁵ This was the first such case in the United States and its precedent was followed by most other states.

A statute of 1819³⁶ pulled together from disparate sections of Virginia law the penalties for both free persons and slaves, keeping the 1-10 year penalty for the former and death without benefit of clergy for the latter.³⁷

No other change occurred in the law until 1848 when a new statute³⁸ reduced the maximum penalty for sodomy for free persons from 10 years to five years, without changing the death penalty for slaves.³⁹

This discrimination finally disappeared with the adoption of a new code of law in 1860.⁴⁰ The 1-5 year penalty remained but the word "free" disappeared, thus reducing the penalty for slaves.⁴¹

Period Summary: A proposed criminal code during the American Revolution, advocated by Thomas Jefferson, was rejected by the legislature. Other than giving Virginia its first sodomy statute, the code would have made Virginia the first to eliminate the death penalty for the crime. It was not until after statehood, in 1792, that the first sodomy statute was enacted, but the death penalty was retained. That penalty disappeared for free persons in 1800, but not for slaves until just before the Civil War. Virginia had one of the earliest reported sodomy cases and one of great historical importance to the country. In 1812, the Virginia Supreme Court broke with English precedent and ruled that an act of sodomy could be complete upon penetration only, rather than requiring emission as well. Most other states then followed the Virginia lead.

The Victorian Morality Period, 1873-1948

A new law in 1878⁴² raised the minimum penalty for sodomy to two years while making no change in the 5-year maximum.⁴³

In 1895, the Virginia Supreme Court decided the case of Williams v. Commonwealth,⁴⁴ and began a string of consecutive sodomy conviction reversals. Brown Williams, a boy who had not yet reached the age of 12, had been convicted of sodomy. Believing it to be "extremely doubtful, to say the least, whether the plaintiff in error was capable of committing the offense," the Court unanimously overturned his conviction.⁴⁵

In 1916, Virginia amended its sodomy⁴⁶ law to expand its scope to cover oral sex. However, the legislature made a unique contribution to law for more than a half century when it worded the provision to read: "If any person...[shall] have carnal copulation in any manner with another person of the same sex...[Emphasis added].⁴⁷ Fellatio and cunnilingus could be enjoyed by heterosexuals, but not Gay men or Lesbians.

The Virginia Supreme Court followed the dictates of this statute in the case of Wise v. Commonwealth,⁴⁸ decided in 1923, when it unanimously overturned the conviction of a heterosexual man for cunnilingus. The Court stated that it could not understand why the legislature put the same-sex restriction into the law

unless because the legislators did not even imagine that such an offense would ever be committed between a man and a woman.⁴⁹

However, the Court was confident that the legislature "will cure the oversight when called to its attention[.]"⁵⁰ In concluding, the Court said that it "can hardly be necessary for us to say that the subject of this opinion has been distasteful."⁵¹ They had endeavored to reach the conclusion

without unnecessary indelicacy of expression, but also without prudery or idle denunciation of the act charged. This character of evil conduct is the vice of low and depraved natures, and instances of it appear to have been notably rare in this jurisdiction.⁵²

The legislature did exactly as the Court suggested. In 1924, the law was reworded⁵³ to read

If any person shall carnally know in any manner any brute animal, or carnally know any male of female person by the anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony and shall be confined in the penitentiary not less than one nor more than three years.⁵⁴

Thus, even though the law was broadened, the penalty was reduced from 2-5 years to 1-3 years. Also, the archaic term "buggery" finally was eliminated.

In 1925, the Virginia Supreme Court unanimously overturned the sodomy conviction in Hudson v. Commonwealth.⁵⁵ Two men became intoxicated and were found in the same bed "so stupefied that water had to be thrown on both of them before either regained consciousness." Hudson’s head was lying on the stomach of the other and he held the other man’s penis in his hand. The Court believed that this was insufficient evidence to sustain the conviction.⁵⁶

Period Summary: During this time, the Virginia Supreme Court reversed every sodomy conviction to come before it. During World War I, Virginia followed the lead of other states and amended its law to permit prosecution for oral sex, except that this provision was limited to acts between those of the same sex. There is no historical indication as to why this discrimination was enacted and, when a heterosexual oral sex case appeared before it, the Virginia Supreme Court reluctantly reversed on that ground. The legislature speedily revised the law to include heterosexual acts.

The Kinsey Period, 1948-1986

In 1950, Virginia enacted a psychopathic offender law.⁵⁷ The law covered only criminal offenses that revealed "sexual abnormality" and permitted the mental examination of persons committing such crimes.⁵⁸ With a mental health report, the trial judge could decide "what disposition shall be made of the defendant."⁵⁹ No statutory guidelines limited the judge’s power in this disposition.

This law was interpreted by the Attorney General in an opinion⁶⁰ in 1951. Answering a query as to whether the law required the judge to sentence an offender to prison after the evaluation, the Attorney General said that it did not.⁶¹

Just how corrosive the Virginia Supreme Court was toward evidence in sodomy convictions is shown by the extreme case of Commonwealth v. Pepoon,⁶² from 1951. Timothy Pepoon’s sodomy conviction was overturned because there was no corroboration of the testimony of his alleged three-year-old partner, who had made an off-hand comment to his mother about being touched on his genitals by Pepoon.

In 1960, the Court shot down a sodomy conviction in the companion cases of Phillips v. Commonwealth and Campbell v. Commonwealth.⁶³ In this case, Phillips claimed that he was approached by a "boy," Campbell, whose age is never stated, and, at Campbell’s suggestion, engaged in an act of sodomy. Campbell countered with the claim that Phillips gave him a lift, but, once inside the car, put his hand on Campbell’s leg. Campbell ended up keeping Phillips’s car overnight and that fact alone was used as corroboration of his act of sodomy.⁶⁴ The Court felt that this was insufficient and reversed the conviction.⁶⁵

The case of Ashby v. Commonwealth⁶⁶ from 1968 led to the Virginia Supreme Court unanimously deciding that the sodomy law was not violated by the mere placing of a mouth on a penis. Actual penetration of the mouth had to be proven.⁶⁷

An opinion of the Attorney General⁶⁸ from 1968 gave the go-ahead to local prosecutors to charge Gay men soliciting for sex under the common-law crimes provision of the Virginia Code. There was no specific solicitation statute in Virginia.

The psychopathic offender law was amended in 1970⁶⁹ to require the trial judge to order an examination of any person the Commonwealth’s attorney asked to have evaluated.⁷⁰

A comprehensive criminal code revision in 1975⁷¹ raised the penalty for sodomy from a 3-year maximum to a 5-year maximum, but gave the jury the option of a sentence of up to one year in a jail and/or a fine.⁷²

A constitutional challenge to the law in federal court in 1975 led to defeat. In Doe v. Commonwealth’s Attorney for the City of Richmond,⁷³ a 2-1 vote of the panel upheld the law. Writing for the Court, Judge Albert Bryan said that, although [n]o judgment is made upon the wisdom or policy of the statute," the law did not violate the Constitution.⁷⁴ There was no bar to criminal penalties for sodomy "since it is obviously no portion of marriage, home or family life[.]"⁷⁵ In circular logic, the criminal statute was found to be within the state’s interest because the law was "simply directed to the suppression of crime, whether committed in public or in private."⁷⁶ The state was

not required to show that moral delinquency actually results from homosexuality. It is enough for upholding the legislation to establish that the conduct is likely to end in a contribution to moral delinquency. Plainly, it would indeed be impracticable to prove the actuality of such a consequence, and the law is not so exacting.⁷⁷

After noting the length of time that sodomy had been proscribed, and making a footnote reference to the Biblical condemnation in Leviticus,⁷⁸ the Court concluded that Virginia showed a "rational basis of State interest[.]"⁷⁹ In dissent, Judge Robert Merhige noted that Virginia, in its arguments in favor of the law, had offered

no evidence which even impliedly demonstrated that homosexuality causes society any significant harm. No effort was made by defendants to establish either a rational basis or a compelling state interest so as to justify the proscription of [the sodomy law] presently under attack. To suggest, as defendants do, that the prohibition of homosexual conduct will in some manner encourage new heterosexual marriages and prevent the dissolution of existing ones is unworthy of judicial response.⁸⁰

Merhige felt that "one can only conclude that the sole basis of the proscription of homosexuality was what the majority refers to as the promotion of morality and decency."⁸¹ In his conclusion, Merhige stated that the other two judges "misinterpreted the issue—the issue centers not around morality and decency, but the constitutional right of privacy."⁸² The plaintiffs then appealed directly to the U.S. Supreme Court for review, bypassing the Fourth Circuit Court of Appeals. The high court surprised the nation when it simply affirmed the District Court decision on appeal by a vote of 6-3.⁸³ Thus, a major constitutional issue was decided by the United States Supreme Court without even the courtesy of granting the plaintiffs a hearing on their case.

The extent to which private sexual relations can be regulated was documented by the 1976 case of Lovisi et ux. v. Slayton et al.⁸⁴ A married couple, Aldo and Margaret Lovisi, went to prison for consensual sodomy between themselves and between Mrs. Lovisi and another man. They were caught only because they had pictures taken of themselves in the act, and their children got their hands on them and took them to school. Sitting en banc, the Fourth Circuit Court of Appeals divided 5-3 to uphold the convictions. The opinion was written by Chief Judge Clement Haynsworth, who had been rejected by the U.S. Senate for a seat on the Supreme Court in 1969. Haynsworth said that the court could "assume" that the fellatio in which the Lovisis engaged was constitutionally protected under the right to privacy enunciated by the Supreme Court.⁸⁵ However, once

a married couple admits strangers as onlookers, federal protection of privacy dissolves. It matters not whether the audience is composed of one, fifty, or one hundred, or whether the onlookers pay for their titillation. If the couple performs sexual acts for the excitation or gratification of welcome onlookers, they cannot selectively claim that the state is an intruder. They possess the freedom to follow their own inclinations in privacy, but one they accept onlookers, whether they are close friends, chance acquaintances, observed "peeping Toms" or paying customers, they may not exclude the state as a constitutionally forbidden intruder.⁸⁶

Thus, Haynsworth said that married couples, and therefore obviously the unmarried, could not set the parameters of their privacy within their own home. That was the job of the state. Judge Harrison Winter, writing for the dissenters, noted that the majority’s opinion had cited no authorities for its conclusion and he cited a long string of case law that reached the opposite conclusion.⁸⁷ Winter noted that the majority said explicitly that the Lovisis could write a book about their sexual activity, thus sharing it with everyone, but could not, on their own decision, invite one or more parties into their own home to witness it.⁸⁸ The U.S. Supreme Court, half a year after its widely attacked summary affirmance in Doe, declined to hear the Lovisi case.⁸⁹

In 1979, the Virginia Supreme Court broke its string of conviction reversals when it upheld a solicitation conviction in Pedersen v. City of Richmond.⁹⁰ Pedersen had been arrested by an undercover police officer, Kenneth Palmer, who was working for Richmond’s "Selective Enforcement Unit," a police unit whose name alone suggests much.⁹¹ Palmer was working "a known area for homosexuals" when he was approached by Pedersen in his car and invited in on a cold winter night. Palmer testified that, once inside the car, Pedersen said "that I looked nice in my blue jeans and that he would like to see me naked."⁹² Palmer also testified that he answered Pedersen’s questions about "what type of things [sexual acts] did I like" and when Pedersen popped the question, Palmer arrested him.⁹³ Breaking its impressive line of more than 80 years of stringent testing of state’s evidence, the Supreme Court rejected Pedersen’s argument that

the evidence is susceptible of the reasonable inference that the officer was solicited for one of such non-criminal forms of deviant sexual behavior between two males, as kissing, fondling, or what his counsel on oral argument referred to as "partner masturbating." We agree that it could reasonably be inferred that Pedersen, who was willing to try almost anything, had one or more acts of non-criminal sexual perversion in mind. However, the evidence that he wanted to see Palmer unclothed and desired to have sex with him showed beyond a reasonable doubt that, regardless of what other incidental sexual activities Pedersen may have hoped to experience with Palmer, Pedersen’s principal objective was to persuade Palmer to engage in an act of sodomy[.]" [Emphasis added].⁹⁴

In 1984, a solicitation for sodomy charge was dropped when the arresting officer let slip in court that he himself had solicited the man on trial.⁹⁵

Also in 1984, a trial judge threw out cases against four men arrested for sex in a shopping mall when evidence of police viewing the activity through a two-way mirror was introduced.⁹⁶

Period Summary: During most of this time, the Virginia Supreme Court continued to reverse every sodomy conviction to come before it, but that string ended after the birth of the modern Gay rights movement. The first conviction to be upheld had the same circumstantial evidence in it that the Court had rejected in other cases. The law’s penalty was revised during this time, but retained as a felony. A federal court challenge was unsuccessful and the U.S. Supreme Court affirmed the lower court’s decision on appeal a decade before the Georgia law was sustained in a written opinion.

The Post-Hardwick Period, 1986-Present

In 1990, the Court of Appeals decided Ford v. Commonwealth.⁹⁷ In this case of heterosexual solicitation, the words "I want to lick your pussy" were found not to constitute a solicitation, distinguishing the case from Pedersen. How this differed from Pedersen’s statement that the undercover officer looked nice in his blue jeans and that he wanted to see him naked is difficult to understand. Possibly because it was heterosexual in nature, the court distinguished the two statements.

A bill to repeal the sodomy law was introduced in 1994.⁹⁸ In addition, a bill to abolish parole for all felonies was introduced in 1994. As proposed, it would outlaw parole for consensual sodomy, since that remains a felony in Virginia. However, both houses of the legislature rejected the proposal and passed a bill that still permitted parole for consensual sodomy. A conference committee was needed to finalize the wording.⁹⁹

A sodomy repeal bill failed in committee in 1995¹⁰⁰ and 1996.¹⁰¹

In 1997, the Virginia Court of Appeals, deciding Branche v. Commonwealth,¹⁰² unanimously rejected a challenge to a solicitation law. Earl Branche had been arrested for soliciting an undercover police officer, Edgar Cruz, who had, through eye contact, led Branche to believe that he was looking for sex. Later, Cruz got more explicit with Branche, stating that he didn’t like anal sex, and asked Branche who was to perform fellatio on the other. When Branche suggested mutual oral sex and reached for Cruz’s crotch, he was arrested.¹⁰³ Under Virginia law, the solicitation is a felony. Had Branche asked for money, the solicitation would have been a misdemeanor. Curiously, Cruz, after arresting Branche, asked him if he would have demanded money. Branche said that he wouldn’t, thereby unwittingly passing up the chance for prosecution for a less serious offense. Branche challenged this dichotomy as unconstitutional discrimination in that soliciting females were arrested under the prostitution section and Gay men under the felony provision, but the Court of Appeals noted that there was neither sex nor sexual orientation discrimination in these laws.¹⁰⁴ The Court also rejected Branche’s selective enforcement argument, even though Cruz testified that, to his knowledge, no female undercover officers ever had been assigned to arrest Lesbians.¹⁰⁵

Another example of the wrong kind of case to claim privacy rights was DePriest et al. v. Commonwealth,¹⁰⁶ from 2000. A number of men had been arrested by undercover police at public parks in Roanoke for solicitation and fondling of the officers. The officers were instructed not to entrap anyone and to make arrests only of those who solicited them for sexual activity to occur in the parks. One man who suggested going to a "private place" for sex wasn’t arrested.¹⁰⁷ In denying the arrestees standing to raise a privacy claim, the Court of Appeals reminded the public that anyone

proposing or engaging in sodomy under circumstances supporting a claim of privacy may, upon discovery and accusation, assert, in his defense, those circumstances and that claim.¹⁰⁸

The Court also rejected a cruel and unusual punishment claim for the maximum five-year sentence for sodomy, saying that "[w]e find our conscience shocked neither by appellants’ sentences nor by the five-year maximum sentence provided by the statute [footnote omitted]."¹⁰⁹ Finally, it rejected the claim that the state’s sodomy law violates the establishment of religion provisions of the Constitution, saying that the law "rests plainly on long established secular values concerning sexual conduct."¹¹⁰

Common-law crimes remain in force in Virginia¹¹¹ as well as the sodomy provision.¹¹² Case law in Virginia is that repeal of the sodomy law will reenact the common-law crimes provision to continue sodomy as a crime.¹¹³

Period Summary: The conservative Virginia legislature has shown no willingness to repeal the sodomy law. The Virginia courts show a continuing support for the sodomy and solicitation laws, if applied to people of the same sex.

---

Notebook

¹ Colony Laws of Virginia 1619-1640, Vol. I, page 57. Charter signed by King James on April 10, 1606.

² Id. at 64, §XV.

³ Id. at 60-61, §VII.

⁴ John Smith et al., A Map of Virginia. With a Description of the Country, the Commodities, People, Government and Religion... (Oxford;Joseph Barnes, 1612). Reprinted in Philip L. Barbour, ed., The Jamestown Voyages under the First Charter, 1606-1609: Documents Relating to the Foundation of Jamestown and the History of the Jamestown Colony Up to the Departure of Captain John Smith, Last President of the Council in Virginia Under the First Charter, Early in October 1609, Vol. 2, (London:Cambridge University Press, 1969), page 384.

⁵ Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), pages 32 and 33.

⁶ For the Colony in Virginea Britannia. Lavves Diuine, Morall and Martiall, etc., (London:Walter Barre, 1612), page 5, §9. I thank Catherine Mishler, Head of the Reference Section of the Virginia State Library and Archives, for providing a copy of the original law. This statute is not apparently well known. The Virginia Attorney General’s office was unaware of any colonial sodomy statute. The law was enacted May 24, 1610.

⁷ Colony Laws of Virginia 1619-1660, (Wilmington DE:Michael Glazier, Inc., 1979), page v.

⁸ Id. at 98. Signed by King James on Mar. 12, 1611.

⁹ Id. at 106-107, §XIV.

¹⁰ Id. at 107-108, §XV.

¹¹ Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 37.

¹² Colony Laws of Virginia 1619-1660, (Wilmington DE:Michael Glazier, Inc., 1979), page 110, dated July 24, 1621.

¹³ Id. at 111, §III.

¹⁴ Id.

¹⁵ Id. at 112, §IV.

¹⁶ Id. §VI.

¹⁷ Id. §V.

¹⁸ Adrienne Koch & William Peden, eds., The Life and Selected Writings of Thomas Jefferson, (New York:The Modern Library, 1944), page 249.

¹⁹ Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), pages 40 and 41. The revocation of the last Virginia charter occurred on May 24, 1624.

²⁰ H.R. McIlwaine, ed., Minutes of the Council and General Court of Colonial Virginia 1622-1632, 1670-1676... (Richmond:Colonial Press, 1924), pages 34, 42, 78, 81, 83, 85.

²¹ Id.

²² Id. at 194-195.

²³ Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 53.

²⁴ The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature in the Year 1619, (Richmond:William Waller Hening, 1810), page 41, enacted Mar. 23, 1661.

²⁵ Id. at 43.

²⁶ Arthur Schlesinger, general ed., The Almanac of American History, (New York:G.P. Putnam’s, 1983), page 58.

²⁷ Julian P. Boyd, ed., The Papers of Thomas Jefferson, Vol. 2, (Princeton:Princeton University, 1950), page 325.

²⁸ A Collection of All Acts of the General Assembly of Virginia 1802, (Richmond:Pleasance and Price, 1803), page 179, ch. C [50], enacted Dec. 10, 1792.

²⁹ Id.

³⁰ Id. at 402, ch. CCLXIV, enacted Jan. 25, 1800.

³¹ Id.

³² William Waller Hening, ed., The New Virginia Justice, Comprising the Office and Authority of a Justice of the Peace, in the Commonwealth of Virginia together with a Variety of Useful Precedents, Adapted to the Laws Now in Force, (Richmond:Johnson & Warner, 1810).

³³ Id. page 148.

³⁴ 3 Va. 307, decided June 16, 1812.

³⁵ Id. at 308.

³⁶ Revised Code of Virginia 1819, Vol. 1, page 586, ch. 159, enacted Feb. 6, 1819.

³⁷ Id.

³⁸ Laws of Virginia 1847-1848, page 93, enacted Mar. 14, 1848.

³⁹ Id. at 112, §11.

⁴⁰ The Code of Virginia. Second Edition, Including Legislation to the Year 1860, (Richmond:Ritchie, Dunnavant & Co., 1860), enacted Mar. 19, 1860.

⁴¹ Id.

⁴² Laws of Virginia 1877-1878, page 279, ch. 311, enacted Mar. 14, 1878.

⁴³ Id. at 303, §12.

⁴⁴ 22 S.E. 859, decided Sep. 19, 1895.

⁴⁵ Id. at 860.

⁴⁶ Virginia Acts of Assembly 1916, page 511, ch. 295, enacted Mar. 18, 1916.

⁴⁷ Id.

⁴⁸ 115 S.E. 508, decided Jan. 18, 1923.

⁴⁹ Id. at 509.

⁵⁰ Id.

⁵¹ Id. at 511.

⁵² Id.

⁵³ Virginia Acts of Assembly 1924, page 516, ch. 358, enacted Mar. 20, 1924.

⁵⁴ Id.

⁵⁵ 127 S.E. 89, decided Mar. 19, 1925.

⁵⁶ Id.

⁵⁷ Virginia Acts of Assembly 1950, page 897, ch. 463, enacted Apr. 7, 1950.

⁵⁸ Id. at 897-897, §53-278.2.

⁵⁹ Id.

⁶⁰ Report of the Attorney General 1951-52, page 49, issued Sep. 13, 1951.

⁶¹ Id. at 50.

⁶² 66 S.E.2d 854, decided Oct. 8, 1951.

⁶³ 116 S.E.2d 282, decided Oct. 10, 1960.

⁶⁴ Id. at 283-284.

⁶⁵ Id. at 285.

⁶⁶ 158 S.E.2d 657, decided Jan. 15, 1968.

⁶⁷ Id. at 658.

⁶⁸ Report of the Attorney General 1967-68, page 76, issued June 27, 1968.

⁶⁹ Virginia Acts of Assembly 1970, page 58, ch. 62, enacted Mar. 6, 1970.

⁷⁰ Id. §1.

⁷¹ Virginia Acts of Assembly 1975, page 18, ch. 14, enacted Feb. 14, 1975.

⁷² Id. at 19, §18.2-10(f).

⁷³ 403 F.Supp. 1199, decided Oct. 24, 1975.

⁷⁴ Id. at 1200.

⁷⁵ Id. at 1202.

⁷⁶ Id.

⁷⁷ Id.

⁷⁸ Id.

⁷⁹ Id. at 1203.

⁸⁰ Id. at 1205.

⁸¹ Id.

⁸² Id.

⁸³ 425 U.S. 901, decided Mar. 29, 1976. Rehearing denied, 425 U.S. 985, decided May 19, 1976. The history of this case in the U.S. Supreme Court is given in Woodward & Armstrong, The Brethren, (New York:Avon, 1981), page 505.

⁸⁴ 539 F.2d 349, decided May 12, 1976. The trial court decision is reported in 363 F.Supp. 620, decided Aug. 31, 1973. The judge in the case was Robert Merhige, who, ironically, voted to strike the sodomy law in 1975.

⁸⁵ 539 F.2d, at 351.

⁸⁶ Id.

⁸⁷ Id. at 354.

⁸⁸ Id. at 354-355.

⁸⁹ 429 U.S. 977, decided Nov. 29, 1976.

⁹⁰ 254 S.E.2d 95, decided Apr. 20, 1979.

⁹¹ Id. at 97.

⁹² Id.

⁹³ Id.

⁹⁴ Id. at 100.

⁹⁵ Washington Blade, June 1, 1984, page 6.

⁹⁶ Washington Blade, July 6, 1984, page 6.

⁹⁷ 391 S.E.2d 603, decided Apr. 24, 1990.

⁹⁸ Washington Blade, Feb. 4, 1994, page 1.

⁹⁹ Washington Blade, Sep. 30, 1994, page 1.

¹⁰⁰ Washington Blade, Feb. 17, 1995, page 10.

¹⁰¹ Washington Blade, Feb. 16, 1996, page 5.

¹⁰² 489 S.E.2d 692, decided Sep. 2, 1997.

¹⁰³ Id. at 694.

¹⁰⁴ Id. at 695.

¹⁰⁵ Id. at 696-697.

¹⁰⁶ 537 S.E.2d 1, decided Nov. 21, 2000.

¹⁰⁷ Id. at 3.

¹⁰⁸ Id. at 5.

¹⁰⁹ Id. at 5-6.

¹¹⁰ Id. at 6.

¹¹¹ Code of Virginia 1975, §1-10.

¹¹² Id. §18.2-361.

¹¹³ Insurance Company of the Valley of Virginia v. Barley’s Administrator, 16 Gratt. (57 Va.) 363, at 384, decided Feb. 18, 1863.

---

[Home] [Virginia] [History] [Sensibility of Our Forefathers]