Doe v. Commonwealth's Atty. for City of Richmond
Citation | 403 F. Supp. 1199 |
Decision Date | 24 October 1975 |
Docket Number | Civ. A. No. 74-0025-R. |
Parties | John DOE et al., Plaintiffs, v. COMMONWEALTH'S ATTORNEY FOR CITY OF RICHMOND et al., Defendants. |
Court | U.S. District Court — Eastern District of Virginia |
John D. Grad, Alexandria, Va. (Philip J. Hirschkop), Alexandria, Va., for plaintiffs.
Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen.), Richmond, Va., for defendants.
Before BRYAN, Senior Circuit Judge, LEWIS, Senior District Judge, and MERHIGE, District Judge.
Virginia's statute making sodomy a crime is unconstitutional, each of the male plaintiffs aver, when it is applied to his active and regular homosexual relations with another adult male, consensually and in private.1 They assert that local State officers threaten them with prosecution for violation of this law, that such enforcement would deny them their Fifth and Fourteenth Amendments' assurance of due process, the First Amendment's protection of their rights of freedom of expression, the First and Ninth Amendments' guarantee of privacy, and the Eighth Amendment's forbiddance of cruel and unusual punishments. A declaration of the statute's invalidity in the circumstances is prayed as well as an injunction against its enforcement. Defendants are State prosecuting officials and they take issue with the plaintiffs' conclusions. With no conflict of fact present, the validity of this enactment becomes a question of law.
So far as relevant, the Code of Virginia, 1950, as amended, provides:
Our decision is that on its face and in the circumstances here it is not unconstitutional. No judgment is made upon the wisdom or policy of the statute. It is simply that we cannot say that the statute offends the Bill of Rights or any other of the Amendments and the wisdom or policy is a matter for the State's resolve.
I. Precedents cited to us as contra rest exclusively on the precept that the Constitution condemns State legislation that trespasses upon the privacy of the incidents of marriage, upon the sanctity of the home, or upon the nurture of family life. This and only this concern has been the justification for nullification of State regulation in this area. Review of plaintiffs' authorities will reveal these as the principles underlying the referenced decisions.
In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), plaintiffs' chief reliance, the Court has most recently announced its views on the question here. Striking down a State statute forbidding the use of contraceptives, the ruling was put on the right of marital privacy—held to be one of the specific guarantees of the Bill of Rights—and was also put on the sanctity of the home and family. Its thesis is epitomized by the author of the opinion, Mr. Justice Douglas, in his conclusion:
p. 486, 85 S.Ct. p. 1682.
That Griswold is premised on the right of privacy and that homosexual intimacy is denunciable by the State is unequivocally demonstrated by Mr. Justice Goldberg in his concurrence, p. 499, 85 S.Ct. 1678, in his adoption of Mr. Justice Harlan's dissenting statement in Poe v. Ullman, 367 U.S. 497, 553, 81 S. Ct. 1752, 1782, 6 L.Ed.2d 989 (1961):
(Emphasis added.)
Equally forceful is the succeeding paragraph of Justice Harlan:
"In sum, even though the State has determined that the use of contraceptives is as iniquitous as any act of extra-marital sexual immorality, the intrusion of the whole machinery of the criminal law into the very heart of marital privacy, requiring husband and wife to render account before a criminal tribunal of their uses of that intimacy is surely a very different thing indeed from punishing those who establish intimacies which the law has always forbidden and which can have no claim to social protection." At p. 553, 81 S.Ct. at p. 1782. (Emphasis added.)
Justice Harlan's words are nonetheless commanding merely because they were written in dissent. To begin with, as heretofore observed, they were authentically approved in Griswold. Moreover, he was not differing with the majority there on the merits of the substantive case but only as to the procedural reason of its dismissal. At all events, the Justice's exegesis is that of a jurist of widely acknowledged superior stature and weighty whatever its context.
With his standing, what he had further to say in Poe v. Ullman, supra, is worthy of high regard. On the plaintiffs' effort presently to shield the practice of homosexuality from State incrimination by according it immunity when committed in private as against public exercise, the Justice said this:
Many states have long had, and still have, statutes and decisional law criminalizing conduct depicted in the Virginia legislation. The subject is comprehensively reviewed in State of New Jersey v. Lair, 62 N.J. 388, 301 A.2d 748, 58 A.L.R.3d 627 (1973) and in the accompanying ALR Annotation.
II. With no authoritative judicial bar to the proscription of homosexuality —since it is obviously no portion of marriage, home or family life—the next question is whether there is any ground for barring Virginia from branding it as criminal. If a State determines that punishment therefor, even when committed in the home, is appropriate in the promotion of morality and decency, it is not for the courts to say that the State is not free to do so. Poe v. Ullman, supra, 367 U.S. 497, 81 S.Ct. 1752, Harlan, J., dissenting at p. 550, 81 S.Ct. 1752; see also California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). In short, it is an inquiry addressable only to the State's Legislature.
Furthermore, if the State has the burden of proving that it has a legitimate interest in the subject of the statute or that the statute is rationally supportable, Virginia has completely fulfilled this obligation. Fundamentally, the State action is simply directed to the suppression of crime, whether committed in public or in private. Both instances, as California, supra, recognizes, are within the reach of the police power.
Moreover, to sustain its action, the State is not required to show that moral delinquency actually results from homosexuality. It is enough for upholding the legislation to establish that the conduct is likely to end in a contribution to moral delinquency. Plainly, it would indeed be impracticable to prove the actuality of such a consequence, and the law is not so exacting.
If such a prospect or expectation was in the mind of the General Assembly of Virginia, the prophecy proved only too true in the occurrences narrated in Lovisi v. Slayton, 363 F.Supp. 620 ( ). The graphic outline by the District Judge there describes just such a sexual orgy as the statute was evidently intended to punish. The Lovisis, a married couple, advertised their wish "to meet people" and in response a man came to Virginia to meet the Lovisis on several occasions. In one instance the three of them participated in acts of fellatio. Photographs of the conduct were taken by a set camera and the acts were witnessed by the wife's daughters, aged 11 and 13. The pictures were carried...
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