Virginia Supreme Court overrules Zysk, declares fornication statute more or less unconstitutional

In Martin v. Ziherl, the Virginia Supreme Court overruled its decision in Zysk v. Zysk and held that a Virginia plaintiff is not prohibited by the illegality of fornication from suing his or her partner for giving him or her veneral disease.

This civil case highlights everything that is wrong with Lawrence. The best rationale for a prohibition against sex between unmarried people is to prevent the spread of venereal disease. How can this plaintiff argue, on the one hand, that there is no rational basis in support of the Commonwealth's prohibition against fornication, but on the other hand, she herself has contracted herpes for which she is entitled to substantial damages? The facts of her own claim prove the rational basis for the criminal statute. Drunk driving cause automobile accidents, so drunk driving should be prohibited. Unmarried sex causes people to get VD, so unmarried sex should be prohibited. There's nothing irrational about that kind of legislative decisionmaking, and therefore nothing unconstitutional about that kind of conclusion in support of the fornication statute.

The Court said they could find no principled way to distinguish Lawrence. They didn't even try! There is no constitutional analysis in this opinion! The Lawrence case does not say that a state can never justify criminalization between consenting adults, one of whom has a veneral disease. In fact, the word "disease" is no where in any of the opinions from Lawrence. Nevertheless, the Virginia court reads Lawrence to have wiped out every state interest for sex laws any state might articulate, regardless of whether it was raised or not raised in the Lawrence case. What principle allows that Lawrence applies beyond its facts, beyond the briefs, beyond the positions of the parties, to other statutes with other rationales that were not raised in Lawrence?

I was just arguing about it this way - take the sentencing guidelines. They've been around for all these years, been litigated up and down, never found to be unconstitutional until somebody unlocked the code and got the Booker decision this week, after all those criminal defendants have tried all these years. Now, take Lawrence - can it really be read to say that no state ever can unlock the code to articulate a rationale for a law involving private, consensual sex between unmarried persons that will pass muster under the low-level rational basis test? Who says that will never happen? Who says that Lawrence applies to arguments that were not considered in Lawrence? Who says that Lawrence gives the Virginia Supreme Court a free pass from having to roll up its sleeves and engage in some actual constitutional analysis before declaring a law of the Commonwealth unconstitutional? To paraphrase Judge Luttig from the Fourth Circuit, "bare citations to decisions by other courts [even the U.S. Supreme Court] cannot substitute for analysis." Wachovia Bank, N.A. v. Schmidt, 388 F.3d 414 (4th Cir. 2004).

Thinking on this decision some more, maybe the defendant in this case has a constitutional defense to liability on the tort claims of the plaintiff, if preventing the spread of venereal disease is not a valid state interest to support the fornication statute, maybe what he did cannot be constitutionally punished. Also, I suppose that this Martin case is officially the death of at least part of the much-maligned Mitchem decision, the wrongful discharge case based on the fornication statute.