Virginia's Fornication Ban Struck Down

Here is a press release from the ACLU, praising a recent decision by Virginia's Supreme Court striking down that state's ban on fornication.  The Richmond newspaper reports that, in that court's view, there is "no relevant distinction" between the Virginia statute outlawing fornication and the Texas sodomy law the U.S. Supreme Court struck down in 2003.  Justice Elizabeth Lacy reasoned that the State's interest in "protection of public health and encouraging the birth of children to married couples" were, given Lawrence v. Texas, "insufficient to sustain the statute's constitutionality."  Under the rationale adopted in the Texas case, "decisions by married or unmarried persons regarding their intimate physical relationship are elements of their personal relationship that are entitled to due process protection," Lacy said.  (Here is the Washington Post story on the case).

Certainly, this decision cannot come as any surprise.  And, it strikes me that there are plenty of prudential reasons for a conscientious legislator to vote against laws purporting to regulate fornication (or any other private sexual conduct).  (Indeed, I would think that thoughtful legislators would almost certainly oppose such bans).  Still, it does seem unfortunate that the constitutionalization of the matter in "liberty" terms, as in Lawrence, is producing constitutional doctrine under which courts are required to denigrate the public interest in, for example, "the encouragement of childbirth to married couples."

Rick