Virginia Sodomy Law Invoked to Block Judge’s Reappointment
The Advocate,
January 16, 2003
In what Lambda Legal Defense and Education Fund, a New York-based gay
rights group, called "another deeply disturbing example" of how
sodomy laws are used to discriminate against gay people, a Virginia state
legislator who oversees a committee responsible for reappointing judges across
the state says he opposes reappointing a local judge to a second term if she
is a lesbian, because she would therefore be violating the state’s sodomy
law. A legislative committee will decide whether to reappoint the judge on
Friday. The decision comes just one day after Lambda announced plans to file a
brief urging the U.S. Supreme Court to overturn Texas’s sodomy law, a case
that also could effectively strike down sodomy laws in Virginia and 11 other
states.
"There is certain homosexual conduct that is in violation of the
law," said Robert F. McDonnell, a Republican member of Virginia’s house
of delegates and chairman of the legislature’s house courts of justice
committee. "It certainly raises some questions about the qualifications
to serve as a judge." Virginia’s sodomy law criminalizes oral and anal
sex between straight and gay couples—including private, consensual intimacy
between adults—but is almost exclusively used to discriminate against
lesbians and gay men, Lambda officials say. McDonnell was referring to Newport
News, Va., circuit judge Verbena Askew, whose reappointment will be considered
in a hearing set for Friday.
"This is yet another deeply disturbing example of how these laws are
used to justify discrimination against gay people," said Ruth Harlow,
Lambda’s legal director and the lead attorney on the Supreme Court case
challenging the Texas law, on Wednesday. "These laws are widely used to
deny gay people jobs, custody of their children, and the fair and equal
treatment we’re all guaranteed in this country."
Askew is one of 60 judges statewide up for reappointment this year, but she
is the only one facing a challenge in the legislature. The legislature
appoints judges to eight-year terms, and reappointments are rarely challenged.
Askew is the first female African-American circuit judge in Virginia history.
In November a legislative committee canceled her formal interview, which
starts the reappointment process. Since then, members of the committee have
raised a wide range of questions about whether Askew is fit to be reappointed,
including whether she treats male defendants too harshly, whether she is
"rude" to people in her courtroom, why the city settled a woman’s
sexual harassment complaint against her a couple of years ago, and now, with
McDonnell’s comments Tuesday, whether she is in violation of the state’s
sodomy law. A number of witnesses as well as Askew herself are expected to
testify Friday before the legislative committee votes on her reappointment.
Askew has declined to comment publicly—including any public comment
regarding her sexual orientation—citing ethical rules that prohibit judges
from speaking out about specific cases or their reappointments.
"Judge Askew should be assessed just like the other 59 judges up for
reappointment this year," Harlow said. "If there are questions about
her professional conduct, those should be investigated and addressed like they
would be with any other judge. Antigay discrimination has no place in the
process of deciding who is fit to be a judge, and using Virginia’s sodomy
law as a smoke screen doesn’t make that discrimination any more
acceptable."
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