Constitutional lawyer wanted

[elfs]

So, VA State representative Robert Marshall (R) claims that the Federal Reserve, which is headquartered in Virginia, is "promoting a class 6 Felony" by flying the gay pride flag during the LGBT Pride Week in Virginia.

Virginia Code 18.2 does read:

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, except as provided in subsection B.

Now, leav aside Sideshow Bob's willful unawareness that far more heterosexuals than homosexuals "know" one another "by the anus or ... the mouth," especially in "Virginia Is For Lovers" Virginia, I have a simple question: is Bob right?

Yes, Bowers v. Hardwick stated that the Fourth Amendment protection to be secure in one's person made such laws unconstitutional, and therefore unenforceable as prosecutable offenses. But did Bowers v. Hardwick also give carte blanche to government agencies to ignore the laws on the books?

I can see how one could make the argument that, although the state is barred from enforcing its sodomy laws, it is also barred from promoting sodomy until VC 18.2 is nullified by further legislsation.

(Yes, I know, equating the pride flag and sodomy is pointless and absurd. It's still how things work in Sideshow Bob's mind. I'm just trying to come to a rationalization of his rationalization.)

Comments

[zanfur.livejournal.com]

It made the laws not only unenforceable, but completely void. The state no longer has sodomy laws -- legally, the text isn't even there. So, Bob is wrong. the text will be removed, eventually, whenever the state gets around to re-organizing the lawbooks.

[bemused-leftist.livejournal.com]

Maybe he thinks "know" means "know about."

[dr-memory.livejournal.com]

I think you're confusing your cases. Bowers v Hardwick upheld the ability of states to enforce laws against consensual sodomy, and in specific for police to arrest someone for sodomy when spotted through an open window in flagrante delicto. The Bowers standard wasn't overturned until 2003, in Laurence v Texas (http://en.wikipedia.org/wiki/Lawrence_v._Texas). (Source of what are two of the strongest-ever contenders for the single most shockingly stupid dissenting opinion: Thomas actually bestirred himself to write his own rather than just signing on to Scalia's.)

[memegarden.livejournal.com]

Technically, one can have gay sex without engaging in sodomy as defined above. So even if the law is considered to still be in effect, there's nothing in it to outlaw mutual masturbation, and who's to say what the proud, flag-waving gays do, specifically, in bed?