The effects of the Texas sodomy case on Virginia law

In this post, I wrote:

Virginia likewise has criminalized sodomy, fornication, and lewd cohabitation. The most recent signs from the Virginia Supreme Court, oddly enough, are that some or all would uphold the constitutionality of these statutes. Justice Kinser cited them in her concurring opinion in the Arlington County "domestic partner" benefits case (in MS Word) from 2000. The majority cited the fornication and cohabitation statutes as the basis for the wrongful discharge claim in Mitchem v. Counts (in MS Word), also decided in 2000.

The viability of these criminal statutes is an element in a recurring issue in domestic relations cases, where one party may assert the constitutional privilege against self-incrimination to questions about sex acts other than with his or her spouse. The Virginia Court of Appeals' unpublished Goldmann case is one example of the self-incrimination issue.

Judge Merhige held that the fornication and cohabitation statutes were unconstitutional in Doe v. Duling, 603 F. Supp. 960 (E.D. Va. 1985), but this opinion was vacated on appeal for lack of standing, 782 F.2d 1202 (4th Cir. 1986), in an opinion by Judge Wilkinson. Roanoke gay rights lawyers also lost a constitutional challenge for lack of standing in the Virginia Court of Appeals, as reported in this 2000 opinion.

This one post has generated quite a number of hits from Googlers searching for the Virginia law of fornication.

On Thursday and Friday, the Daily Press reported here and here, the Roanoke Times reported here, the Richmond Times-Dispatch reported here, the Virginian-Pilot reported here, and Attorney General Jerry Kilgore conceded in this press release that the Lawrence case will have some effect on the laws of Virginia.

The likely result of the Lawrence case applied in Virginia is that the sodomy law is unconstitutional as applied to same-sex or opposite-sex scenarios, and the fornication and co-habitation statutes are probably also invalid. In fact, I would argue, the next time I see something like Mitchem (or Zysk v. Zysk), that the public policy of these statutes is trumped by the Constitution, and therefore the plaintiff has no claim or the defendant has no defense based on the illegality of fornication. (The Zysk case is the one where the Virginia Supreme Court held that a woman could not sue for contracting a loathsome social disease from her boyfriend because her injuries were the result of her illegal conduct in having sex with him.)

Tim Sandefur has this interesting post comparing the Lawrence decision with the Loving case, which struck down Virginia's ban on interracial marriage.