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COURT REPORTER
NOT EXACTLY A VALENTINE [by James Kilpatrick] In a week awash with the sentiments of St. Valentine, it may seem unseemly to comment upon a recent opinion in the Supreme Court of Virginia. The case, alas, had nothing to do with sentiment. As M. Chirac is wont to say, au contraire.
The case involved a suit brought by Maggie
The trial court sustained his demurrer, but
all state laws punishing private homosexual-
against her lover Charles. I have changed the
Virginia’s Supreme Court reversed. Whatever
ity.
litigants’ names to protect the infected. The
weight might once have attached to laws for-
case number is 040804, decided by unani-
bidding adult fornication, said Justice Lacy,
In a scathing dissenting opinion, joined by
mous opinion on Jan. 14. Justice Elizabeth B.
that weight vanished with the U.S. Supreme
Justice Thomas and Chief Justice Rehnquist,
Lacy spoke for the Virginia court.
Court’s 6-3 decision two years ago in the
Scalia said his brethren had put into question
homosexual case of Lawrence v. Texas. With
every law against “adult incest, prostitution,
The facts are not seriously in dispute.
that decision, the sexual activity between
masturbation, adultery, fornication, besti-
Charles and Maggie, unmarried adults, en-
Maggie and Charles became a constitution-
ality and obscenity.” He scoffed at Justice
tered into an intimate relationship in October
ally protected liberty. It no longer matters
Kennedy’s assertion of “an emerging aware-
2001. For many months they engaged in “un-
that a majority of Virginia voters may view
ness that liberty gives substantial protection
protected sexual conduct.” That relationship
unmarried fornication as immoral. That is
to adult persons in deciding how to conduct
ended rudely in November 2003. That was
not “a sufficient reason for upholding a law
their private lives in matters pertaining to
when Maggie noticed that telltale blisters
prohibiting the practice.”
sex.”
Justice Lacy emphasized that the court’s
Justice Kennedy, swept away on the tides of
opinion does not affect the Commonwealth’s
his own eloquence, had praised an “emerging
Given today’s litigious society, Maggie
police power regarding regulation of public
awareness of liberty” that develops as time
naturally took appropriate measures. In-
fornication, prostitution and other such of-
goes by. The framers of the Constitution, he
stead of shooting him, she sued him. In her
fenses. These laws remain in effect. But a
mused, had not grasped “the components
complaint, she alleged that Charles knew
law that “improperly abridges a personal re-
of liberty in its manifold possibilities.” Later
that he had the kind of herpes that may be
lationship that is within the liberty interest of
generations understand that some laws
sexually transmitted, that he knew the virus
persons to choose” cannot be sustained. The
“once thought to be necessary and proper,”
was contagious, and that he never told her.
Constitution says that no state may deprive
such as the Texas statute, “now serve only to
She sought both compensatory and punitive
any person of “liberty” without due process
oppress.”
damages.
of law. Voluntary private fornication between
had begun to form. It was a serious case of herpes.
consenting adults has become a form of con-
Getting back to Maggie’s suit against the
Charles filed a demurrer. The bounder as-
stitutional liberty. As Cato was wont to say,
bounder: Now that Charlie’s demurrer has
serted that Maggie’s injuries were her own
“quod erat demonstrandum.”
been cast aside, he may have to stand trial on the merits of her case. Ultimately we may
fault: She had voluntarily and repeatedly engaged in an act that was illegal in Virginia,
This may not have been exactly what the
learn a little more about the manifold pos-
to wit, fornication between unmarried per-
framers of the 14th Amendment intended
sibilities of liberty. Maggie could testify about
sons. The state law, Va. Code Sect. 18.2-344,
— but that was 1868, and this is now. The
one of those possibilities. Its awareness
makes it a Class A misdemeanor “for any
Virginia court’s opinion in the case of Charles
emerged early in November 2003.
person, not being married, voluntarily to have
and Maggie takes us one more mile along a
sexual intercourse with any other person.” It
course denounced by Justice Antonin Scalia
(Readers are invited to send dated citations
is hornbook law that recovery will not lie in
in the Lawrence case in June 2003. That was
of usage to Mr. Kilpatrick. His e-mail address
cases of injury resulting from illegal activity.
the case in which the high court, speaking
is kilpatjj@aol.com.)
through Justice Anthony Kennedy, nullified
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