Ronald Waller, s/k/a v. Commonwealth of Virginia

Citation: Not availableDocket: 1920993

Court: Court of Appeals of Virginia; November 20, 2000; Virginia; State Appellate Court

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Ten consolidated appeals arise from convictions for solicitation to commit oral sodomy, violating Virginia Code § 18.2-29 and § 18.2-361. The appellants challenge the constitutionality of Code § 18.2-361, arguing it infringes upon the fundamental right to privacy under Article I of the Virginia Constitution, violates the prohibitions against cruel and unusual punishment in both the Virginia and U.S. Constitutions, and contravenes the establishment clause of the First Amendment and Article I, Section 16 of the Virginia Constitution. The Commonwealth argues that the appellants lack standing to challenge the statute's constitutionality on a facial basis and can only contest its application in their individual cases. The trial court had previously denied the motions to dismiss, leading to this appeal, which focuses on the trial court's rulings regarding the statute's constitutionality. The judgments of the trial court are affirmed.

At the hearing on motions to dismiss, Roanoke City Police Lieutenant R.E. Carlisle testified about public complaints regarding sexual activities in parks, including found used condoms. In response, he deployed undercover officers to surveil the parks, specifically investigating solicitation to commit sodomy while ensuring no entrapment occurred. Charges against the appellants stemmed from these investigations. Witnesses, including sex therapists and clergy, testified to the societal acceptance of consensual oral sex. The trial court denied the motions to dismiss, ruling that Code 18.2-361 did not establish religion or impose cruel punishment, and that it did not violate any recognized right to privacy. The court found the appellants lacked standing to contest the statute's application to others. Following this, nine appellants pled guilty after evidence showed they proposed oral sodomy to undercover officers in public parks, with some engaging in sexual acts. The appellants argued they had standing to challenge the statute's constitutionality and claimed it imposed cruel punishment and established religion. The court affirmed the trial's judgments, ruling the appellants lacked the necessary standing and that the statute in question did not violate constitutional protections.

Appellants argue that Code 18.2-361 infringes on the right to privacy under Virginia's Constitution, specifically Article I, Section 1, which guarantees equality and inherent rights, including life, liberty, property, and the pursuit of happiness. In Young v. Commonwealth, the Supreme Court clarified that "liberty" encompasses not only freedom from restraint but also the right to pursue personal interests lawfully. However, this right is not absolute and must be exercised in a manner consistent with the rights of others.

The ability to challenge a law's constitutionality is limited to how it directly affects the individual bringing the challenge; they cannot assert the rights of others. The appellants claim an exception to this standing requirement, referencing past Supreme Court cases that recognized limited exceptions under certain conditions, particularly in First Amendment cases. However, they acknowledge that this is not a First Amendment issue.

The court holds that individuals not party to the case, such as sex therapists and consenting adults, have their own means to protect their rights and thus do not suffer from the outcome of this case. As a result, the appellants fail to demonstrate that their own rights are infringed upon by Code 18.2-361, leading to the conclusion that they lack standing to challenge the statute's constitutionality.

The constitutionality of Code 18.2-361 is evaluated concerning the appellants' actions leading to their convictions. The appellants argue that the statute infringes on their right to privacy by restricting homosexual conduct. They reference privacy rights associated with married individuals and those engaging in private acts. However, the court determines that the appellants' conduct was public, as they solicited acts in public parks, which does not warrant privacy protections. Citing Lovisi v. Slayton, the court emphasizes that once such acts are made public, any claim to privacy is forfeited, and the appellants lack standing to challenge the statute based on the rights of others.

Additionally, the appellants claim that the statute constitutes "cruel and unusual punishment" under Virginia's Constitution and the Eighth Amendment, arguing that the punishment for sodomy is disproportionately harsh compared to adultery or fornication. The court disagrees, affirming the legislature's authority to define crimes and punishments. The court finds no shock to the conscience in the sentences imposed, which included conditional pleas resulting in suspended sentences and fines, and a jury conviction with a shorter jail term.

Finally, the appellants assert that the statute violates the prohibition against the "Establishment of Religion." The court also rejects this claim.

The appellants presented evidence regarding the religious roots of the law against sodomy, asserting that this connection renders Code. 18.2-361 unconstitutional. However, the mere existence of a religious origin does not resolve the constitutional question. Citing McGowan v. Maryland, the Supreme Court indicated that the Establishment Clause does not prohibit regulations that align with certain religious tenets if the underlying purpose is secular and aimed at the general welfare. Examples include laws against murder, adultery, and theft, which align with religious teachings but are justified by societal needs. The Supreme Court established a three-pronged test for determining if a statute constitutes an establishment of religion: it must have a secular legislative purpose, its primary effect must neither advance nor inhibit religion, and it must not lead to excessive government entanglement with religion. The appellants did not demonstrate that Code. 18.2-361 primarily advances or inhibits religion or fosters excessive entanglement. Instead, the statute is based on established secular values concerning sexual conduct. Consequently, the appellants failed to prove that Code. 18.2-361 constitutes an establishment of religion, leading to the affirmation of the trial court's judgments.