Virginia Court of Appeals Affirms Sodomy Statute - Standing

Text of the ruling upholding ten appeals from criminal conviction for solicitation to commit oral sodomy in violation of Code §§ 18.2-29 and 18.2-361.

<-- Case Background	Privacy Issue -->

II. STANDING

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Appellants first contend that Code § 18.2-361 violates the right to privacy as guaranteed by Article I, Section 1, of the Constitution of Virginia, which provides: Equality and rights of men -- That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

In Young v. Commonwealth, 101 Va. 853, 45 S.E. 327 (1903), the Supreme Court explained the meaning of the liberty guarantee as follows:

The word "liberty," as used in the Constitution of the United States and the several States, has frequently been construed, and means more than mere freedom from restraint. It means not merely the right to go where one chooses, but to do such acts as he may judge best for his interest, not inconsistent with the equal rights of others; that is, to follow such pursuits as may be best adapted to his faculties, and which will give him the highest enjoyment. The liberty mentioned is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purpose above mentioned. These are individual rights, formulated as such under the phrase "pursuit of happiness" in the Declaration of Independence, which begins with the fundamental proposition that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. Id. at 862-63, 45 S.E. at 328-29 (citations omitted) (emphasis added).

The constitutional right to liberty is not an unlimited license. Liberty must be enjoyed and exercised lawfully and in a manner not inconsistent with the equal rights of others.

An individual may challenge the constitutionality of a law only as it applies to him or her. See Coleman v. City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42 (citation omitted), reh'g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988). "That the statute may apply unconstitutionally to another is irrelevant; one cannot raise third party rights." Id. at 463, 364 S.E.2d at 242. See also Pederson v. Richmond, 219 Va. 1061, 1066, 254 S.E.2d 95, 98 (1979) (finding one lacks standing to assert the privacy rights of third parties).

The appellants contend that they fall within an exception to the general standing rule.

In the past, the [United States Supreme Court] has recognized some limited exceptions to these principles, but only because of the most "weighty, countervailing policies." One such exception is where individuals not parties to a particular suit stand to lose by its outcome and yet have no effective avenue of preserving their rights themselves. Another exception has been carved out in the area of the First Amendment. Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973) (citations omitted); see also Santillo v. Commonwealth, 30 Va. App. 470, 477 n.3, 517 S.E.2d 733, 736 n.3 (1999) (stating an exception to the general standing rule is in the area of First Amendment challenges).

This is not a First Amendment case. See Pederson, 219 Va. at 1066, 254 S.E.2d at 98. Contrary to the appellants' argument, sex therapists, married persons, and consenting adults engaging privately in sexual conduct (persons not involved in this case) do not stand to lose by the outcome of this case. They retain an "effective avenue of preserving their rights themselves." Any such person proposing or engaging in sodomy under circumstances supporting a claim of privacy may, upon discovery and accusation, assert, in his defense, those circumstances and that claim.

We conclude, therefore, that appellants fall within the general rule that a party attacking the constitutionality of a statute must demonstrate that his own, rather than a third party's, rights are unconstitutionally infringed. Accordingly, appellants lack standing to challenge facially the constitutionality of Code § 18.2-361. Thus, we consider the constitutionality of the statute only as it applies to the appellants in this case and to their conduct that underlay their convictions.