By Kent Willis, Executive Director, ACLU of Virginia
During every General Assembly session for as long as I can remember, Virginia’s legislators have glanced at but ultimately turned a blind eye to fixing one of the most stunningly antiquated state laws in the nation. Virginia ’s “crimes against nature” statute, usually referred to as the sodomy law, makes it a felony for any two individuals-- married, single, heterosexual or homosexual--to engage in anal or oral sex anywhere, including their own bedrooms.
No one knows for sure, but it’s a good bet that the vast majority of Virginia ’s legislators have committed this crime on multiple occasions. Aware that admitting to a felony could cost him his job, Delegate Robert F. McDonnell, when asked if he had ever broken the sodomy law, responded famously, “Not that I recall.”
That, in a nutshell, sums up the ambivalence, timidity, hypocrisy, and downright ants-in-your-pants discomfort the mere mention of this law brings to legislators. They know that the law is broken by almost everyone. They know the law is used almost exclusively against gays and lesbians. They know that the government ought not to be poking its nose into the intimate affairs of consenting adults, whatever their sexual orientation. They know that the law belongs to a long past era, if it ever truly belonged to any era.
Yet they cannot bring themselves to deal with it. Each year, one or two legislators introduce bills to repeal or amend the sodomy law, only to watch the committee to which it is assigned quickly and quietly bury it. At first blush, the sole reason for this speedy annual exit seems to be the sexual subject matter. We are still a fairly puritanical group here in the Old Dominion, so sex is more comfortably dismissed in committee than subjected to floor debates.
But there is more to it than that. For when they are so inclined, legislators can get intimate with body parts and bodily functions. Some of our laws, none of which will be quoted here, read like a cross between pornography and an anatomy textbook.
No, the source of the squeamishness is not just the subject of sex, but of sex and homosexuality. And it is not just personal discomfort that produces this annual slight of sodomy law reform, but also political discomfort with the idea of voting for a bill that might appear to treat gays and lesbians with a modicum of fairness.
Given their druthers, Virginia ’s legislators would never deal forthrightly with the sodomy law, as that would mean admitting in some way that gays and lesbians are entitled to the same constitutional protections as the rest of us in their intimate relationships.
But last summer the U.S. Supreme Court dropped a bomb on Virginia and the other states that still have sodomy laws, when it ruled that laws banning private sex of any kind between consenting adults are unconstitutional.
The case, Lawrence v. Texas, is famous as much for its legal basis as for its conclusion. One of the main arguments against the Texas sodomy law was that it discriminated against gays and lesbians by criminalizing oral and anal sex between homosexuals but not heterosexuals. Thus, the Texas sodomy law seemed most vulnerable to a legal challenge on equal protection grounds.
The possibility of the Texas law being struck down as discriminatory did not worry Virginia legislators since our equal opportunity sodomy law, unlike the Texas law, bans the practice for everyone, regardless of sexual orientation. But the Supreme Court went further than almost anyone anticipated, declaring in a sweeping opinion that laws regulating the bedroom behavior of consenting adults violate our right of privacy.
Under this ruling Virginia ’s sodomy law was unquestionably unconstitutional, and the General Assembly would finally be forced to deal with it. There would be no annual rite of non-passage in this year’s legislative session.
Or so we thought.
The disconcerting news out of the 2004 General Assembly is that legislators were still unable to repeal or amend the sodomy law. They tried, even did better than usual in some ways, but in the end they folded when the going got tough.
The House of Delegates passed a bill punishing sodomy only when it occurs in a public place, but there was a problem. The measure would have made public sodomy a felony, while leaving all other public sexual acts as misdemeanors. Reason and common sense dictated that the punishment for all acts of sex in public be the same, preferably a misdemeanor.
This should have been easy to correct in the Senate, but the old squeamishness seemed to return when it became clear to legislators that they might be supporting a bill that provided equal treatment for gays and lesbians under law. So the Senate Courts of Justice Committee, after struggling with whether to make public sodomy a misdemeanor or a felony, shelved the bill for the session.
It could very well be that by the end of this year, when every state legislative body has finished its work, Virginia will be the only place in the nation with a sodomy law that has been declared unconstitutional by the U.S. Supreme Court. Should we be surprised?