Crimes Against Whom?

The kinds of crimes that most disturb me are crimes against people. What other kinds are there? Well, there are crimes against non-human animals and against the environment – which greatly disturb me as well. There are even some crimes against companies that we should worry about.

But what to make of Virginia’s ban on “crimes against nature”? Who is “nature” and why should I care about crimes against him or her? If “nature” is a mythical religious being, then the law violates the first amendment. If it’s something else…well, what else could it be?

Some people don’t like playing chess, but they haven’t made a law to prevent other adults from playing consensual chess. Sounds so tame as to be silly, doesn’t it? “Consensual chess.” After all, “adult consensual oral sex” may be enjoyable and freely engaged in, but it is sex – and oral sex at that – which is, you know, kind of icky. It’s offensive even to mention it.

When I was in a debating club at UVa, this macho heterosexual gun-toting libertarian dude got up and said “I break the law frequently. Felatio is illegal in Virginia.” To which someone replied: “Aren’t there some things you just wish you didn’t know?” That comment won lots of laughter, breaking the nervous silence left by the first one.

It may be absurd for this guy’s enjoyable harmless activity to be illegal, but why should we have to hear about it? Ick. After all, having this moronic law on the books is sort of quaint and doesn’t hurt anybody. Right?

Wrong. In an amicus brief filed jointly with Lambda Legal Defense and Education Fund, the ACLU argues that the Virginia law – which, among other provisions, prohibits all oral sex regardless of the gender or marital status of the persons involved – violates the right of privacy guaranteed by the Virginia Constitution.

“It is time for Virginia to deal with this archaic law,” said ACLU of Virginia executive director Kent Willis. “Not only does it allow the government to invade the bedroom of every Virginia citizen, but it has been shamefully misused to discriminate against the gay community.”

“We are hopeful that the Virginia Supreme Court will do what legislators seem to lack the willpower to do,” added Willis. “There is little doubt that the vast majority of Virginia’s legislators want this law eliminated or substantially modified. But they fear taking on such a politically touchy subject, so they turn away from it year after year.”

The brief asks that the Virginia Supreme Court either strike down the law as unconstitutional or rule that the law does not apply to private sexual activity between consenting adults. The ACLU brief warns that a ruling from the Virginia Supreme Court stating that the law only applies to gay men and lesbians would conflict with the U.S. Supreme Court’s decision in Romer v. Evans.

In that case, decided in 1996, the nation’s highest court ruled that a law specifically targeting gays and lesbians based on dislike or disapproval of them violates the equal protection clause of the U.S. Constitution.

In recent years, the ACLU has successfully helped overturn sodomy laws in Maryland (1999), Georgia (1998), Montana (1997), Tennessee (1996) and Kentucky (1993). In 1961, every state in America had a sodomy law. Today, 13 states and Puerto Rico have sodomy laws that apply to heterosexuals and homosexuals (like Virginia’s sodomy statute). Another five states have sodomy laws that apply only to homosexuals.

Are we hoping to be the last state to step out of the 18th century? Or are we just trying to ensure that Ken Starr doesn’t lack for important work to do?