Doe v. Commonwealth's Attorney of Richmond

Doe v. Commonwealth's Attorney of Richmond
Case Title	Doe v. Commonwealth's Attorney of Richmond, 425 U.S. 901 (1976)
Date	1976
Appealed	Yes
Personal Information
Taxonomy
Link to Ruling
Country/Jurisdiction	United States
State or Province
Regulatory Bodies
Decided	Yes
Arbitrator	US Supreme Court
Related Laws	Constitution - Amendment I, Constitution - Amendment V, Constitution - Amendment XIV

Short Summary

Doe v. Commonwealth's Attorney of Richmond, 425 U.S. 901 (1976), is a decision by the Supreme Court of the United States which gave summary affirmation of a lower court ruling which upheld the U.S. state of Virginia's ban on homosexual sodomy.

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. 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.

Background

The first permanent English colony was established in 1607 in Jamestown, Virginia. Three years later in 1610, Virginia adopted England's sodomy laws, making sodomy punishable by death. The first person punished under a sodomy law in the English colonies was a women, Elizabeth Johnson, in 1642 in the Massachusetts Bay Colony.Gay men were not singled out by sodomy laws until the late 1800s, when gay subcultures developed in the growing cities. Police frequently raided restaurants and bars with gay and lesbian clientele throughout the 20th century. By the 1950s, all 50 states had sodomy laws, and sodomy was considered a felony in all but two states. In the spring of 1969, several Richmond, Virginia, bars were forced to close for violating Virginia alcoholic beverage control laws which prohibited the sale of alcohol to known homosexuals. Many people wrote letters to the Richmond Times-Dispatch protesting the closing of these bars. In 1961, Illinois became the first U.S. state to repeal their law against consensual sodomy. At the time of the Doe case, 34 states had laws making homosexual acts between consenting adults punishable criminal offenses.

Following the U.S. Supreme Court's Roe v. Wade decision, members of the National Gay and Lesbian Task Force (NGLTF) worked with an attorney from the Loving v. Virginia (1967) case, Philip Hirschkop, to challenge Virginia's sodomy laws. Hirschkop believed that the right to privacy established in previous cases, especially Roe, protected consenting adults' sexual behavior.

In 1975, with the assistance of NGLTF, two anonymous homosexual men filed suit in federal district court challenging the constitutionality of the criminalization of homosexual anal or oral sex. The Code of Virginia provided: "§ 18.1-212. Crimes against nature. If any person shall carnally know in any manner any brute animal, or carnally know any male or female person by the anus or by or with the mouth, or voluntarily submit to such carnal knowledge, he or she shall be guilty of a felony and shall be confined in the penitentiary not less than one year nor more than three years." The plaintiffs claimed this statute violated their First Amendment right to freedom of expression, their Fifth and Fourteenth Amendments right to due process, and the Eighth Amendment's prohibition of cruel and unusual punishment.

Decision

A three-judge panel of the United States District Court for the Eastern District of Virginia upheld the constitutionality of anti-sodomy laws. The majority opinion, written by Senior Circuit Judge Albert V. Bryan, concluded: "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." Judge Robert R. Merhige Jr. disagreed with the ruling. In his dissenting opinion he wrote: "The Supreme Court has consistently held that the Due Process Clause of the Fourteenth Amendment protects the right of individuals to make personal choices.. A mature individual's choice of an adult sexual partner, in the privacy of his or her own home, would appear to me to be a decision of the utmost private and intimate concern.""

The two plaintiffs appealed to the U.S. Supreme Court, which provided a one-sentence summary affirmation of the district court's decision.