Virginia Court of Appeals Affirms Sodomy Statute - Establishment of Religion

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.

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V. ESTABLISHMENT OF RELIGION

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Finally, the appellants contend that Code § 18.2-361 violates the prohibition against an "Establishment of Religion" contained in Article I, Section 16, of the Constitution of Virginia and the First Amendment to the Constitution of the United States. We disagree. The appellants produced testimony concerning the religious origins and development of the law against sodomy. They argue that its religious origin renders Code § 18.2-361 unconstitutional. Although Code § 18.2-361 may have a basis in religious values, this alone is not dispositive of the constitutional issue. In rejecting a constitutional challenge to Maryland's Sunday closing laws, the Supreme Court held in McGowan v. Maryland, 366 U.S. 420 (1961): However, it is equally true that the "Establishment" Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue. Id. at 442 (citations omitted).

The Supreme Court has defined a three-pronged test to determine whether a statute effects an establishment of religion. To be found free of such an establishment, "first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (citations omitted). The appellants have failed to prove that the primary effect of Code § 18.2-361 is to advance or inhibit religion. Nor have they proved that Code § 18.2-361 fosters "excessive governmental entanglement with religion." Id. To the contrary, the statute rests plainly on long established secular values concerning sexual conduct. Thus, the appellants have failed to demonstrate that Code § 18.2-361 effects an establishment of religion.

We affirm the judgments of the trial court.

Affirmed.