Virginia is again in national headlines thanks to actions taken by the General Assembly, this time the rejection of a gay judicial candidate by Republicans in the House of Delegates.
The New York Times story includes a statement issued by Gov. Bob McDonnell on the matter, and points out criticism of the statement by Democrats:
Gov. Bob McDonnell, a Republican, weighed in on the debate Tuesday, sending out a statement that implicitly condemned the vote, saying judicial candidates “must be considered based solely on their merit, record, aptitude and skill.”
The statement also said Mr. McDonnell had “long made clear that discrimination on the basis of sexual orientation is not acceptable in state government,” an assertion that his Democratic opponents say contradicts his own record.
The Democrats are referring in particular to the handling of a Newport News judge back in 2003. At the time, McDonnell was a state delegate and chairman of the House Courts of Justice Committee, which considers judicial appointments.
In an interview with the Daily Press, McDonnell said that while a person's sexual orientation should not disqualify him or her from being a judge, engaging in homosexual sexual activity might, as it violates the state's "crimes against nature" law, which remains on the books.
"There is certain homosexual conduct that is in violation of the law," McDonnell told the Daily Press. "I'm not telling you I would disqualify a judge per se if he said he was gay. I'm talking about their actions."
The complete 2003 Daily Press story follows below the fold.
Del. Robert F. McDonnell, a Virginia Beach Republican who is chairman of the state legislature's House Courts of Justice Committee, also said that while such behavior alone would not disqualify someone from being a judge, "It certainly raises some questions about the qualifications to serve as a judge."
Virginia's "crimes against nature" law bans all oral and anal sex regardless of the gender of the parties involved. It has been criticized as an antiquated statute that intrudes into private lives and that is likely to be used only against gay people. Repeated attempts to repeal the law have failed.
McDonnell made the comments, which drew immediate criticism from legal scholars and gay rights activists, during an interview about the continuing controversy surrounding the reappointment of Newport News Circuit Judge Verbena Askew. Askew is to appear Friday before a joint meeting of the House and Senate Courts of Justice Committees. McDonnell said he doesn't plan to ask her about her sex life at the hearing; he's more interested in whether she honestly answered a questionnaire asking if she had ever been "a party to a civil proceeding."
McDonnell's committee must endorse Askew for reappointment if she is to serve a second eight-year term. Her term expires in March.
In questioning her reappointment, lawmakers have said they have heard anonymous complaints about Askew's courtroom demeanor, but nothing has been more damaging to Askew's chances for another term than an out-of-court settlement of a sexual-harassment complaint between the city of Hampton and a woman Askew used to supervise.
A former Newport News Drug Court official alleged that Askew, who oversaw the court at the time, had propositioned her. The woman, who worked for the city of Hampton, complained to the Hampton personnel department. The city hired an attorney who specializes in employment law to investigate the allegations, and she found them to be invalid.
The accuser then claimed that her Hampton supervisor and other city employees failed to protect her from harassment, and retaliated against her for complaining about it. To settle the complaint, the city paid $64,000 in 2001, including $10,000 to the woman's lawyer. The settlement included a statement that the city was not admitting that the woman's claims were true.
At about the same time, Askew and her accuser signed a separate letter of understanding that specified that neither woman could sue the other or make disparaging remarks about the other. Askew has denied the woman's accusations throughout.
Nothing in the woman's complaint suggests that Askew had any physical contact with her or that the judge has ever violated the anti-sodomy law.
McDonnell said the settlement, and Askew's failure to mention it in a questionnaire submitted to the General Assembly, are more important issues.
When told of McDonnell's comments Tuesday, Askew cited Virginia's Canons of Judicial Conduct, which forbid judges from talking to the media about specific cases and from publicly campaigning for a judicial appointment or renomination. The canons are a guideline for how judges should behave, and violations can result in removal from office.
"I will be happy to address any of their concerns on Friday," Askew said of the committee.
Asked if he had ever violated the law, McDonnell said, "Not that I can recall."
But the activity is illegal, McDonnell said, and judges must be expected to obey the law.
"There is certain homosexual conduct that is in violation of the law," McDonnell said. "I'm not telling you I would disqualify a judge per se if he said he was gay. I'm talking about their actions."
McDonnell stressed that he does not know whether Askew is a lesbian.
"I have no direct evidence of her sexual orientation other than innuendo in the community and the sexual-harassment complaint," McDonnell said.
Sen. Kenneth Stolle, R-Virginia Beach, chairman of the Senate Courts of Justice Committee, and state Sen. Thomas K. Norment, a James City Republican who represents part of Newport News, say they also have heard comments about the fact that Askew's accuser is a woman.
"I have received some comments along that vein," Norment said. "I have summarily dismissed those comments as being irrelevant."
Stolle, who has been Askew's loudest critic in the General Assembly, said Askew's sexual orientation is not an issue to him.
The executive director of the Virginia chapter of the American Civil Liberties Union, Kent Willis, said there's no relationship between a person's sexual orientation and whether they would make a good judge.
"Whether someone is gay or lesbian should have absolutely no bearing on his ability to be a judge," Willis said.
Willis said the same standard should be applied to married male judges.
"Probably 90 percent of the judges are breaking the law," Willis said.
McDonnell said it would be just as bad if a heterosexual male judge violated the anti-sodomy law. But he said he's never seen evidence of that and he doesn't plan to start asking.
"If we start bringing every judicial candidate in and asking them about their sexual orientation we'll make a mockery out of the law," McDonnell said.
McDonnell, 48, has served in the House of Delegates since 1992. A socially conservative attorney, he is considered one of the leading Republicans in the House and a candidate for attorney general in 2005.
Several pieces of high-profile legislation bear his fingerprints, and he was on the short list of Republicans who could have become House speaker after last year's resignation of S. Vance Wilkins Jr.
McDonnell declined to pursue the position, citing his family and business commitments and his aspirations for higher office.
McDonnell is Catholic, a graduate of Notre Dame and Boston University, and received his law degree from Regent University, founded by Christian broadcaster Pat Robertson.
During a hotly competitive 1999 race, McDonnell received $5,000 in campaign contributions from Robertson.
Gay rights advocates were enraged by the news of McDonnell's comments.
"I don't believe sexual orientation has one thing to do with ability to serve as a judge," said Joseph Price, chairman of the board for Equality Virginia, a gay rights advocacy organization, which is holding its annual reception for lawmakers in Richmond Thursday night.
"There are hundreds, if not thousands, of elected officials and members of the judiciary who routinely violate the crimes against nature act," he said.
Law Professor Anthony D'Amato of Northwestern University's law school in Chicago said since the law is rarely, if ever, enforced in Virginia against consenting adults, it doesn't seem right for McDonnell to raise the issue in relation to Askew.
Michael Adams, attorney for Lambda Legal, a national organization working for gay rights, said this incident "is one more example of how these unconstitutional laws are used to mistreat people."
Adams said using this law acts as a pretext for discrimination.
"There is no correlation between a person's sexual orientation and their ability to be a judge," Adams said. "The process of choosing judges should be beyond political reproach and beyond discrimination."
Additionally, Adams said, whether or not Askew or any other member of the judiciary violated this law, either homosexually or heterosexually, should not affect one's fitness to be a judge.
"It has never been the case that anybody who might break the law is not fit to serve as a judge," said Adams, who pointed to judges who get speeding tickets as an example.
"This is not about that law. This is about discrimination against gay people."
Thirteen states, including Virginia, have sodomy, or "crimes against nature" laws on the books. In Virginia, that law applies to both same-sex and heterosexual couples.
THE CRIMES AGAINST NATURE LAW
* "If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony".
* A Class 6 felony punishable by up to five years in prison.