Virginia’s Attorney General Blocks ‘Friends of The Court’ Briefs
2 Groups Ask to Join Fight Over Sodomy Law
Roanoke Times,
May 25, 2000
P. O. Box 2491, Roanoke, VA 24010
Fax 703-981-3204
Email: response@roanoke.infi.net
Roanoke police used the law in 1998 to crack down on "cruising," or the
seeking of sex by gay men, in Wasena Park.
By Laurence Hammack
In fighting to preserve a law that makes consensual oral sex a felony, Virginia’s
attorney general has temporarily blocked two organizations from supporting 10 gay men
challenging the law.
The men, convicted of seeking sex from undercover police officers in a Roanoke park,
are arguing on appeal that the state law forbidding oral sex is an archaic invasion of
privacy.
That view is shared by the Log Cabin Republican Club of Northern Virginia, a GOP
gay-rights group, and The Liberty Project, a Washington D.C.-based libertarian
organization. Both groups sought to file "friends of the court" arguments on
behalf of the men this month with the Virginia Court of Appeals.
Sam Garrison, a Roanoke attorney who represents the men, consented. Attorney General
Mark Earley’s office did not.
The refusal was "a bit peculiar," said William Kocol, an Alexandria attorney
who represents the Log Cabin Republicans. "In my opinion, it’s a matter of
professional courtesy" to allow such a filing, he said. "But I can’t speak
for the attorney general or say what was on his mind."
Randy Davis, deputy press secretary for Earley, declined to elaborate because the case
is pending in court.
As for the law against sodomy – defined as a "crime against nature" that
includes oral and anal sex – Davis said: "The attorney general by statute
upholds the laws of the commonwealth, and that is what he will do in this case."
Although all 50 states once had such laws, Virginia is one of 17 where they remain on
the books. Virginia’s law makes no distinction between homosexual or heterosexual
sex, and applies to both public sex acts and ones committed in the privacy of a
couple’s bedroom.
Roanoke police used the law in 1998 to crack down on "cruising," or the
seeking of sex by gay men who frequent public places such as parks. After having
conversations with officers posing as cruisers in Wasena Park, 18 men were charged –
not with the act of sodomy, but with soliciting it from the officers.
The resulting legal fight has rumbled far beyond Wasena.
Garrison’s appeal is thought to be the first constitutional challenge of the law
heard by a Virginia appellate court in at least 20 years.
Earlier this year the House of Delegates voted to reduce the crime of sodomy to a
misdemeanor before a Senate committee killed the measure.
Although the Log Cabin Republicans did not receive Earley’s permission to file a
brief, it’s not too late for them to enter the legal fray.
If a group wishing to become a friend of the court is denied permission from either
side, it can still ask the Court of Appeals to allow it in.
Both Kocol and Elena Broder-Feldman, counsel for The Liberty Project, say they intend
to do just that. The American Civil Liberties Union might also join the cause.
Once the briefs are filed, lawyers will make arguments to the court by late summer or
early fall, and a decision could come by year’s end.
With a growing number of states abolishing their sodomy laws by either judicial or
legislative action, attention is now turning to Virginia.
"These organizations that wish to file briefs apparently see the Virginia courts
as not being close-minded about it," Garrison said. "They obviously think
it’s worth their time."
In a petition to the Court of Appeals, Garrison portrayed the case as not just a
gay-rights issue but one that affects "the fundamental right of 4.5 million adult
Virginians to be free from governmental intrusion into areas where they have a reasonable
expectation of privacy."
The appeal attacks the law on three fronts: that it violates privacy rights guaranteed
by both state and federal Constitutions; that it is based on religious grounds and thus
violates the separation of church and state; and that its potential five-year prison
sentence subjects defendants to cruel and unusual punishment.
In addition to blasting the law’s language, critics also have complained about how
it was used, saying police unfairly discriminated against gay men for behavior that is
tolerated among heterosexuals.
The sting operation had mixed results in court. A city jury convicted one man and gave
him 60 days in jail. Juries acquitted three other men, and the cases against two others
were dropped by prosecutors. Twelve defendants pleaded guilty and were given suspended
jail sentences and the chance to challenge the law on appeal.
Roanoke police and prosecutors have said that while they have no intention of invading
the privacy of couples’ bedrooms, they were justified in using the sodomy law to
respond to citizen complaints about cruising.
But the law makes no such distinctions, and Broder-Feldman of The Liberty Project
argued that such a fundamental right of privacy "should not depend on the graces of
prosecutors for its protection."
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