NEWPORT NEWS – A Newport News [Va.] woman charged with a felony for receiving oral sex in a car is challenging a state law that prohibits certain types of sex between consenting adults.
A police officer says he found the 21-year-old woman in a parked car receiving oral sex from a man about 3 a.m. Jan. 29. Both were charged with a felony under the statute for crimes against nature.
Advocates who have fought against the state’s anti-sodomy laws say this case is unusual because the laws are seldom applied to heterosexuals.
I’m tempted to say that we take nature seriously here in Virginia, but I won’t. If you want to find out why the woman but not the man is challenging this law, then you’ll have to go read this article. I already warned you that the sex wasn’t the interesting part.
Here’s what’s interesting. The defendant’s attorney,
David M. Lee, says the charge against his client is unconstitutional. He points to a 2003 U.S. Supreme Court decision, Lawrence v. Texas, which struck down state sodomy laws while saying the government can’t regulate the sexual behavior of consenting adults in private.
As a result of the ruling, Lee argued that the state law has already been nullified, and felony charges against his client should be dropped.
Stating that it was beyond the boundaries of his job to rule on the constitutionality of a statute, Newport News General District Court Judge Bryant L. Sugg denied Lee’s motion at a preliminary hearing Monday. Lee said he would continue to argue his case when it goes to trial.
Not long ago SLATE’s Dahlia Lithwick argued that “congressmen shouldn’t get into the business of interpreting the Constitution,” an argument I criticized with some heat here. I wonder if she would also maintain, agreeing with Judge Sugg in this case, that interpreting the Constitution is not in the job description of lower court judges. Not surprisingly, the local prosecutor agrees even as she disagrees with Lithwick about whose job it is:
[Assistant Commonwealth's Attorney Jill] Schmidtke also said that the constitutionality of the statute “is a matter for the legislature.”
I’ve been living in Virginia for quite a while, but I hadn’t realized that we’d done away with judicial review.