The Attorney General of Virginia is seeking to craft a new law that complies with Lawrence v. Texas, but also plans to keep the existing law on the books despite the fact that it can’t be enforced. The reasoning is mind-boggling:
Removing the state’s more than two-century-old law could doom pending court cases involving people charged or convicted under current Virginia law, members of the commission said. “The reason we’re going to do that is right now there are several cases working through the court systems in Virginia,” said Kimberly Hamilton, executive director of the Virginia Crime Commission. “The [Attorney General’s] Office is going to deal with that on an appellate level.”
So they can’t invalidate the current law — which has been struck down by Lawrence already — because there are people charged under it? How’s that again?
Well, it’s not quite as absurd as it sounds. The law in question is the same one prohibiting public sex, a prohibition the high court sees as legitimate. Of course, that’s not the only agenda at work. State House delegate David Albo sums it up:
A lot of people don’t agree that certain sex acts should be legal in Virginia. Some people don’t want to capitulate to a decision by the Supreme Court they consider to be completely wrong.
Unfortunately for Albo, the Supremes think otherwise.
The AG does his best to muddy the issue as one of states-rights and an overreaching judiciary; one hopes that few are fooled by such grandstanding:
“The people of Virginia have a right to say that they do not want these acts performed in public and that such acts, if performed against someone’s will, are criminal,” said [Virginia Attorney General Jerry W.] Kilgore in a written statement.
Granted, of course; that public sex may be prohibited isn’t even at issue, and obviously many acts legal for consenting participants become illegal when done without that consent. He’s parading out the most simplistic of straw men.
“As one who believes that the courts are to interpret and not create law, I disagree with the ruling and am always disappointed when a court undermines Virginia’s right to pass legislation that reflects the views and values of our citizens.”
Whatever, Jerry. Any first-year law student should be able to tell you that the right of a state to pass laws that reflect said “views and values” does not mean they may pass laws in violation of the Constitution. What if the “views and values” include second-class status for African-Americans? Clearly, the issue isn’t as simple as laws reflecting the will of the majority. We have a Constitution to protect our liberties even from the tyranny of that majority. Even if you reject the notion of a Constitutional right to privacy (as established in Griswold v. Connecticut, which held that it really was okay to buy birth control), surely the explicit Equal Protection clauses apply.
All quotes from this Moonie Washington Times story.