State's Sodomy Law Puts Lesbian's Judgeship In Jeopardy

(CNSNews.com) - A key Republican lawmaker in Virginia has threatened to block the re-appointment of a local judge because, in the lawmaker's judgment, the judge's personal behavior as a lesbian violates the state's sodomy law.

Homosexuality advocates are protesting the lawmaker's lifestyle inquiry, which they claim has nothing to do with Newsport News Circuit Judge Verbena Askew's qualifications.

Delegate Robert McDonnell (R-Virginia Beach) recently said Askew's homosexuality might prevent her from being sworn in for a second eight-year term. Virginia's "crimes against nature" law strictly prohibits anal and oral sex between consenting adults, regardless of gender.

Speaking as chairman of the Virginia House Committee on Courts of Justice, McDonnell reportedly said Askew's homosexual conduct "certainly raises some questions about the qualifications to serve as a judge."

Askew is the first female African-American circuit court judge in Virginia and one of 60 judges statewide whose terms expire this year.

According to Michael Adams, spokesman for the homosexual advocacy group, LAMBDA Legal Defense and Education Fund, Virginia's sodomy law "has nothing to do with whether Judge Askew is fit to serve as a judge."

Adams said Askew should be considered for re-appointment based on her tenure and history on the bench and not held to "extraneous things" such as Virginia's sodomy law, which he deemed a "pretext for discrimination" against homosexuals.

"It's a law that is used to persecute gays and lesbians, it's an inappropriate use of the state's power in a discriminatory fashion, and it's not just Lambda that thinks so," Adams said.

When LAMBDA filed a brief last week with the Texas Supreme Court to challenge a sodomy law in that state, Adams said, conservative organizations like the Cato Institute and Institute for Justice filed their own briefs on the same side of the argument.

LAMBDA's defense team is currently trying to overturn Texas' sodomy law, which could effectively strike down similar laws in 12 states, including Virginia's longstanding "crimes against nature" statute.

According to Adams, Virginia has invoked its sodomy law in recent years only to prevent homosexuals from adopting children and to discriminate against homosexuals involved in child custody battles. He could not recall any instance of the law being used against a heterosexual defendant.

But conservative legal expert Phil Kent, president of the Southeastern Legal Foundation, said the law is primarily enforced by police as a result of other illegal circumstances.

"Police aren't running around the country invading peoples' bedrooms just to see what's going on in there. These cases are occurring because warrants are being served, [and] they're going into the home with another warrant," Kent said. "You can't be doing anything else illegal in your home, whether it's drugs, homosexual sex or, conceivably, oral sex under that Virginia statute."

Kent said anyone under criminal investigation could be considered "fair game" under Virginia's sodomy law, including Askew.

When asked whether Askew had a criminal record that would merit such an official inquiry into her lifestyle, Adams said, "There is no indication that she has, as far as we know, been involved in any type of criminal prosecutions...under this law or any other law."

However, according to a recent report in the Hampton Roads Daily Press, a former Newport News Drug Court official did allege that she was propositioned by Askew. The city hired an attorney, who found the allegations to be invalid, but Askew's accuser reportedly persisted in her complaint, claiming she was still being harassed by Askew and that her supervisor and co-workers were failing to protect her. In 2001, the city of Hampton Roads paid the woman $64,000, including $10,000 to her lawyer.

Both Askew and her accuser reportedly signed a letter of understanding, which specified that neither woman could sue the other or make disparaging remarks about the other. Nothing in the woman's complaint against Askew suggests that the judge acted in violation of the state's sodomy law.

"I think that the members of the Virginia Legislature have every right to question her conduct," Kent said. "It certainly raises some questions about her qualifications to serve as a judge."

Kent said the state legislature has every legal right to rescind Askew's judgeship for the sole reason that she is a lesbian, and by definition, is in violation of Virginia's sodomy law.

Robert Knight, director of the Culture and Family Institute in Washington, D.C., added that people who are openly homosexual make their sexuality part of their identity.

"I don't think there's any homosexual without the 'sexual'. In other words, this idea of identity without actions is nonsense, it's non-existent," Knight said. "To forge an identity based on engaging in a wrongful activity such as homosexuality shows, at the least, lack of judgment."

In 1998, Kent said the U.S. Supreme Court declined to hear the case of Robin Shahar, a woman who had her job offer rescinded because she was a lesbian. A Georgia appellate court had earlier ruled that the woman's civil rights were not being denied by the decision to rescind the job offer.

"The Bowers v. Hardwick case was the precedent-setting court decision that upheld Georgia's sodomy law," Kent said. "It was Mike Bowers who fired Robin Shahar, who he had previously given the job offer to in his attorney general's office. The reason was that her lesbian relationship violated the Georgia sodomy law."

Kent said the bottom line in cases like those involving Askew and Shahar is that traditional morality must be upheld by all citizens, regardless of their sexual orientation.

"Lesbians can't do whatever they want, and neither can the rest of us," Kent said. "That's why there are laws on the books...and, when they're on the books, they shouldn't be undermined."

Newport News judge denied term in rancorous debate
Associated Press
© January 22, 2003
Last updated 4:53 PM Jan. 22

RICHMOND -- Two legislative committees voted today to deny a second term to a Newport News judge who had been accused of sexual harassment.

The fight over whether to re-elect Judge Verbena Askew, who is black, divided the General Assembly along racial lines, with one senator comparing the move to oust her to a lynching.

In a party-line vote, the Republican-dominated House Courts of Justice Committee decided 13-7 not to certify Askew as qualified for re-election. Two Democrats joined eight Republicans in a 10-5 vote against Askew in the Senate Courts of Justice Committee.

Del. Robert McDonnell, R-Virginia Beach and chairman of the House committee, said the harassment claim by Askew's accuser was credible enough to conclude that the judge acted in an improper manner. He said there was also a ``documented pattern'' to suggest that Askew sought to undermine Brenda Collins at work after Collins filed the complaint.

The city of Hampton paid $64,000 to settle Collins' complaint. Askew has denied the allegations.

``I find such a pattern of behavior by a Circuit Court judge toward an employee unacceptable,'' McDonnell said.

``Seven months ago, this House decided that even the speaker of the House ... could not continue to serve in a leadership position'' under similar circumstances, he added, referring to the sexual harassment scandal that brought down former House Speaker S. Vance Wilkins last year.

Askew's supporters pointed to her record of handing out tough sentences to criminals, but Senate Minority Leader Richard L. Saslaw, D-Fairfax, said that alone was not enough to warrant a second term.

``If we reappoint this judge, we are saying that if you do all right in the courtroom we don't care what else happens around that courthouse,'' said Saslaw.

He said he was especially troubled by a Virginia Employment Commission hearing examiner's finding that Collins was harassed on the job after filing her complaint.

Askew's critics also cited a survey of Newport News attorneys in which the judge received low marks for efficiency and courtroom demeanor.

Del. Kenneth R. Melvin, D-Portsmouth, argued that the judge was suffering a ``death by a thousand small cuts,'' pointing out there was not a single piece of concrete evidence to remove her.

He said a half-day hearing by the courts committees on Friday was filled with hearsay, innuendo, rumor and conflicting testimony _ none of which reached the threshold of burden of proof.

``The combination of these things smells bad,'' he said, ``with the undercurrent of questions about sexual orientation and lesbianism, all of this rolled together.''

Sen. Kenneth Stolle, R-Virginia Beach and chairman of the courts committee, faulted Askew for failing to disclose the harassment complaint on committee questionnaires this year and in 2000, when she was considered for a seat on the Virginia Court of Appeals.

Earlier Wednesday, a black state senator was warned by the lieutenant governor to tone down her criticism when she likened some of her colleagues to a lynch mob and to Trent Lott.

``At a time when we are celebrating the life of Dr. Martin Luther King, I am burdened by what appears to be a resurgence of racial discrimination,'' state Sen. L. Louise Lucas said.

The campaign against Askew ``took on the appearance of a lynch mob,'' she said, adding that the committees' handling of the matter ``leads me to believe the Trent Lott disease has crossed over the Potomac.''

Lott, a Mississippi Republican, lost his post as U.S. Senate majority leader as a result of comments he made Dec. 6 at a 100th birthday party for retiring Sen. Strom Thurmond, R-S.C. Lott said he thought the nation would have been better off if Thurmond had been elected president in 1948, when he ran as a Dixiecrat on a segregationist platform.

Lt. Gov. Timothy M. Kaine, a fellow Democrat who presides over the Senate, interrupted Lucas, telling her that she was out of order by breaching Senate rules that forbid one senator from challenging another's motives.

Lucas' speech brought rebukes from Stolle and Saslaw.

``We literally shut down the General Assembly Friday afternoon to have a 7«-hour hearing for Judge Askew, not because she is black, not because she is a woman, but because she is a judge and it is our duty and responsibility in the Courts of Justice Committee to determine whether we are going to certify her as qualified,'' Stolle said.

Said Saslaw: ``I thought what went on in there was as fair as can be.''
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