Virginia Sodomy Challenge May Expand
Washington Blade,
January 7, 2000
By Bill Roundy
An attorney representing nine men who are challenging the Virginia law against sodomy
is hoping the appeals court will accept his petition to expand the challenge to include
how the law applies to heterosexual couples, too.
The Virginia Court of Appeals agreed Dec. 13 to hear a case challenging the
constitutionality of Virginia’s "Crimes Against Nature" law, which
prohibits any act of oral or anal sex. The law applies to both heterosexual couples and
homosexual couples, but the case was brought by nine Roanoke men charged with soliciting
male undercover police officers to commit a felony (sodomy) in that southwestern Virginia
city. In two separate decisions, Roanoke judges rejected motions to dismiss charges
against the men on the grounds that the sodomy law was unconstitutional. The men appealed
those decisions to the Virginia Court of Appeals, the state’s second-highest court.
When Court of Appeals Judge Charles Duff issued the court’s certificate agreeing
to hear the men’s appeal, he limited the scope of legal arguments in the case to the
manner in which the law was applied to those nine men. The men cannot challenge the law as
it applies to everyone in Virginia, the certificate states, as the nine men had hoped to
do. Openly Gay attorney Sam Garrison, who will be arguing the case, has filed a challenge
to that portion of the judge’s limitation on the appeal.
A motion filed during the earlier Roanoke challenge, charged that the sodomy law was
used selectively against Gay men and, thus, violated the right to equal protection. The
head of the vice bureau of the Roanoke Police, Lt. Carlisle, denied that charge,
testifying that, if officers overheard two people of any gender talking about going home
to engage in oral sex, the officers should at least warn the couple that they were
committing a felony.
Garrison said he felt that stating that the law was used selectively was not a strong
argument, and he chose not to pursue that angle further when appealing the Roanoke
judges’ decision. Instead, Garrison is using Carlisle’s testimony to buttress
his argument for expanding the scope of the appeal to include others aside from the men
that he represents.
"This Court should take the government at its word," Garrison wrote,
"that it is willing to use its police power to invade the personal privacy of any and
every adult, putting these appellants so much ‘in the same boat’ with all other
adult Virginians that any differences among them have no constitutional
significance."
"We’ve been trying to get the courts to focus on the indiscriminate breadth
of the sodomy statute," he told the Blade. If the court considers the law in its
broadest form, Garrison said, it will be more likely to find the law unconstitutional.
For instance, if the law is considered as it applies to everyone, Garrison added, he
will be able to argue that the law infringes on the privacy rights of married heterosexual
couples who engage in sodomy. It is extremely unlikely that the court would find that the
state has the ability to limit the sexual behavior of married couples in the privacy of
their bedroom, Garrison said, since that is one of the highest standards of privacy
rights.
In park cruising cases involving Gay men, however, arguments based on privacy rights
are less likely to find favor with the court, he said.
Aside from the question of privacy, the challenge also asserts that the sodomy law
violates the prohibition on government establishments of religion, because, said Garrison,
it elevates biblical prohibitions of sodomy to the status of law. He said the sodomy law
also constitutes "cruel and unusual punishment" because of its potential
five-year prison sentence.
A three-judge panel will hear oral arguments in late March or April on Garrison’s
appeal of the technical decision to limit the scope of the case and will probably issue a
ruling on that within the next few months.
Regardless of the outcome on the technical issue, the overall challenge to the sodomy
law will go on.
"If we don’t like the outcome, we can appeal to the [Virginia] Supreme
Court," Garrison noted. "It would be our hope to have the Supreme Court give the
last word on this issue."
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