COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia


ELVIS GENE DePRIEST

v. Record No. 1587-99-3

COMMONWEALTH OF VIRGINIA

LARRY RIERSON JONES

v. Record No. 1595-99-3

COMMONWEALTH OF VIRGINIA

RUSSELL NEWAII POINDEXTER

v. Record No. 1596-99-3 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA NOVEMBER 21, 2000

JAMES PATRICK FAY

v. Record No. 1597-99-3

COMMONWEALTH OF VIRGINIA

PHILLIP WAYNE EVANS

v. Record No. 1598-99-3

COMMONWEALTH OF VIRGINIA

BARRY WAYNE HODGES

v. Record No. 1599-99-3

COMMONWEALTH OF VIRGINIA

JOHN JOHNSON, S/K/A
JOHN WILLIAM JOHNSON

v. Record No. 1600-99-3

COMMONWEALTH OF VIRGINIA

LAWRENCE T. MARTYS, S/K/A
LAWRENCE P. MARTYS

v. Record No. 1601-99-3

COMMONWEALTH OF VIRGINIA

EVERETTE ELMO DAVIDSON

v. Record No. 1619-99-3

COMMONWEALTH OF VIRGINIA

RONALD WALLER, S/K/A
RONALD THOMAS WALLER

v. Record No. 1920-99-3

COMMONWEALTH OF VIRGINIA


FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge, in DePriest
Robert P. Doherty, Jr., Judge, in remaining cases

Sam Garrison (David Denton Lawrence; Michael B.
Massey; Trumbo & Massey, P.L.C., Richard Lee Lawrence & Associates,
on briefs), for appellants.

John H. McLees, Jr., Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for appellee.

Amicus Curiae: Log Cabin Republican Club of Northern
Virginia (William G. Kocol; Eugene M. Lawson, Jr., Resident Counsel,
on brief), for appellants.

Amicus Curiae: The Liberty Project (Julie M.
Carpenter; Jared O. Freedman; Elena N. Broder-Feldman; Jenner &
Block, on brief), for appellants.

Amicus Curiae: American Civil Liberties Union
Foundation, American Civil Liberties Union of Virginia, Inc., and
Lambda Legal Defense and Education Fund, Inc. (Michael Adams; Matthew
Coles; Marianne Merritt; Philip Hirschkop; Rebecca K. Glenberg;
Stephen R. Scarborough; Hirschkop & Associates, P.C., on brief), for
appellants.


These ten consolidated appeals are from judgments of conviction in
the Circuit Court of the City of Roanoke for solicitation to commit
oral sodomy in violation of Code 18.2-29 and 18.2-361. The
appellants contend that the trial court erred in ruling that Code
18.2-361: (1) does not violate the fundamental right to privacy
guaranteed by Article I of the Constitution of Virginia; (2) does not
violate the prohibitions against cruel and unusual punishment
contained in Article I, Section 9, of the Constitution of Virginia
and in the Eighth Amendment to the Constitution of the United States;
and (3) does not violate the prohibitions against an establishment of
religion contained in Article I, Section 16, of the Constitution of
Virginia and in the First Amendment to the Constitution of the United
States. The Commonwealth contends that the appellants lack standing
to attack the constitutionality of Code 18.2-361 facially and that
each may assert the statute's constitutional invalidity only as the
statute applies to him in his respective case. We affirm the
judgments of the trial court.
I. BACKGROUND
Each appellant moved to dismiss the indictment against him,
contending that Code 18.2-361 is unconstitutional on its face.
Each argued, inter alia, that the statute denies the fundamental
right to privacy guaranteed by the Constitution of Virginia, that it
violates the prohibition against an establishment of religion
contained in the First Amendment to the Constitution of the United
States and in Article I, Section 16, of the Constitution of Virginia,
and that it violates the prohibition against cruel and unusual
punishment contained in Article I, Section 9, of the Constitution of
Virginia and the Eighth Amendment to the Constitution of the United
States. After conducting a joint evidentiary hearing and receiving
post-hearing briefs, the trial court denied the motions. This appeal
addresses the trial court's ruling.
At the hearing on their respective motions to dismiss, appellants
called as a witness Roanoke City Police Lieutenant R.E. Carlisle,
commander of the police Vice Bureau. Lieutenant Carlisle testified
that the police had received numerous complaints of sexual activities
in public places, including complaints that members of the public
found used condoms littering the ground in city public parks. He
testified that children had found condoms, in some cases thinking
they were balloons.
Responding to the foregoing complaints, Lieutenant Carlisle
sent plainclothes police officers to surveil the public parks. They
observed homosexual "cruising" occurring in and between Smith Park
and Wasena Park and in the public restroom in Wasena Park. Based on
this information, Lieutenant Carlisle sent several male undercover
officers into the parks to investigate solicitation to commit sodomy.
He instructed the officers: (1) they were not to entrap anyone; (2)
they were to investigate "based on their training and see if anyone
would offer to commit an act against them, or pay to commit an act
against them"; and (3) to be charged, a person "had to show a
willingness to carry out the act in the park." The charges that led
to these appeals were made pursuant to those guidelines. One person
proposed committing oral sodomy in a private place. That person was
not charged.
The appellants also called as witnesses a number of sex
therapists, clergymen and lay people, who testified to the
prevalence, popularity and harmlessness of oral sex between
consenting adults, married and unmarried, "gay" and "straight," in
their own lives and in modern American culture.
The trial court issued a memorandum opinion explaining its
denial of the motions to dismiss. The court first held that Code
18.2-361 did not constitute an establishment of religion or impose
cruel and unusual punishment. It further held that, as applied to
the appellants in these cases, Code 18.2-361 violated no right to
privacy recognized by the United States or Virginia Constitutions.
It ruled that the appellants lacked standing to complain of the
potential application of the statute to other persons or to their
private activities.
After the motions to dismiss were denied, nine of the
appellants pled guilty and were tried jointly. The evidence in each
case, as summarized by the assistant Commonwealth's attorney,
disclosed that the respective appellant and an undercover police
officer met in a public park and struck up a conversation that led to
the appellant's proposing to engage in oral sodomy with the officer.
In no case did the appellant specify that the act would occur other
than in the public park. In four cases, the appellants reached for
and fondled the officers' crotch areas while engaging in those
discussions. In another case, the appellant exposed himself to the
officer while masturbating in a public restroom. In one case, the
appellant suggested "find[ing] a place where no one would see us"
before performing fellatio on the officer.
In appellant Waller's jury trial, the arresting officer
testified that he struck up a casual conversation with Waller while
both were standing by the river in Wasena Park. Waller then
"grabbed" the officer's genitals and fondled him while discussing sex
acts and proposing that they commit oral sodomy at a different spot
in the park.
The appellants contend that they have standing to challenge the
constitutionality of Code 18.2-361 on its face rather than only as
applied to them. They further contend that Code 18.2-361 imposes
cruel and unusual punishment and constitutes an establishment of
religion. Because the appellants lack standing to attack Code
18.2-361 on its face and because the statute neither imposes cruel
and unusual punishment nor constitutes an establishment of religion,
we affirm the judgments of the trial court.
II. STANDING
Appellants first contend that Code 18.2-361 violates the right to
privacy as guaranteed by Article I, Section 1, of the Constitution of
Virginia, which provides:
Equality and rights of men -- That all men are by nature equally free
and independent and have certain inherent rights, of which, when they
enter into a state of society, they cannot, by any compact, deprive
or divest their posterity; namely, the enjoyment of life and liberty,
with the means of acquiring and possessing property, and pursuing and
obtaining happiness and safety.
In Young v. Commonwealth, 101 Va. 853, 45 S.E. 327 (1903),
the Supreme Court explained the meaning of the liberty guarantee as
follows:
The word "liberty," as used in the Constitution of the United
States and the several States, has frequently been construed, and
means more than mere freedom from restraint. It means not merely the
right to go where one chooses, but to do such acts as he may judge
best for his interest, not inconsistent with the equal rights of
others; that is, to follow such pursuits as may be best adapted to
his faculties, and which will give him the highest enjoyment. The
liberty mentioned is deemed to embrace the right of the citizen to be
free in the enjoyment of all his faculties; to be free to use them in
all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling, and for that purpose to enter into
all contracts which may be proper, necessary, and essential to his
carrying out to a successful conclusion the purpose above mentioned.
These are individual rights, formulated as such under the phrase
"pursuit of happiness" in the Declaration of Independence, which
begins with the fundamental proposition that all men are created
equal; that they are endowed by their Creator with certain
inalienable rights; that among these are life, liberty and the
pursuit of happiness.
Id. at 862-63, 45 S.E. at 328-29 (citations omitted) (emphasis
added). The constitutional right to liberty is not an unlimited
license. Liberty must be enjoyed and exercised lawfully and in a
manner not inconsistent with the equal rights of others.
An individual may challenge the constitutionality of a law
only as it applies to him or her. See Coleman v. City of Richmond, 5
Va. App. 459, 463, 364 S.E.2d 239, 241-42 (citation omitted), reh'g
denied, 6 Va. App. 296, 368 S.E.2d 298 (1988). "That the statute may
apply unconstitutionally to another is irrelevant; one cannot raise
third party rights." Id. at 463, 364 S.E.2d at 242. See also
Pederson v. Richmond, 219 Va. 1061, 1066, 254 S.E.2d 95, 98 (1979)
(finding one lacks standing to assert the privacy rights of third
parties).
The appellants contend that they fall within an exception to the
general standing rule.
In the past, the [United States Supreme Court] has recognized some
limited exceptions to these principles, but only because of the most
"weighty, countervailing policies." One such exception is where
individuals not parties to a particular suit stand to lose by its
outcome and yet have no effective avenue of preserving their rights
themselves. Another exception has been carved out in the area of the
First Amendment.
Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973) (citations omitted);
see also Santillo v. Commonwealth, 30 Va. App. 470, 477 n.3, 517
S.E.2d 733, 736 n.3 (1999) (stating an exception to the general
standing rule is in the area of First Amendment challenges).
This is not a First Amendment case. See Pederson, 219 Va. at
1066, 254 S.E.2d at 98. Contrary to the appellants' argument, sex
therapists, married persons, and consenting adults engaging privately
in sexual conduct (persons not involved in this case) do not stand to
lose by the outcome of this case. They retain an "effective avenue
of preserving their rights themselves." Any such person proposing or
engaging in sodomy under circumstances supporting a claim of privacy
may, upon discovery and accusation, assert, in his defense, those
circumstances and that claim.
We conclude, therefore, that appellants fall within the
general rule that a party attacking the constitutionality of a
statute must demonstrate that his own, rather than a third party's,
rights are unconstitutionally infringed. Accordingly, appellants
lack standing to challenge facially the constitutionality of Code
18.2-361. Thus, we consider the constitutionality of the statute
only as it applies to the appellants in this case and to their
conduct that underlay their convictions.
III. PRIVACY
Appellants contend that by inhibiting their ability to engage in
homosexual conduct with other similarly disposed persons, Code
18.2-361 infringes their right to privacy. In so arguing, they
assert the privacy rights of married persons and of persons who,
unlike them, may engage in such conduct in private. But the
appellants' conduct was not private. Whatever may be the
constitutional privacy rights of one who engages in sodomy in
private, those rights do not attach to one who does the same thing in
public. See Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973),
aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977 (1976).
Lovisi involved a challenge to the constitutionality of the
predecessor to Code 18.2-361. Mr. and Mrs. Lovisi engaged in
sodomy with a third person in their home. They permitted themselves
to be photographed committing those acts. The pictures fell into the
hands of their children and became public. Lovisi claimed the
statute unconstitutionally invaded his right of privacy. The court
held that through publication Lovisi's acts ceased to be "private."
The court said:
The Court is faced with the . . . question of whether, if the
Lovisis' conduct was not constitutionally protected, they may attack
the constitutionality of [the statute] on the basis of the rights of
third persons. . . . The Court . . . holds that they do not have
standing to assert the constitutional rights of other persons and
thus may not attack the constitutionality of statutes underlying
their conviction on this basis.
Id. at 623-24.
The activities underlying the charges against the appellants were not
conducted in private. Their solicitations were made to strangers in
public parks. They proposed to commit sodomy in the public parks.
The appellants' acts and their proposed conduct were clothed with no
circumstance giving rise to a supportable claim of privacy. Those
acts and proposed conduct fall squarely within the rule of Lovisi.
IV. CRUEL AND UNUSUAL PUNISHMENT
The appellants next contend that Code 18.2-361 violates the
prohibitions against "cruel and unusual punishment" contained in
Article I, Section 9, of the Constitution of Virginia and the Eighth
Amendment to the Constitution of the United States. They argue that
the disparity between the punishment provided for sodomy and that
provided for adultery or fornication effects the imposition of cruel
and unusual punishment upon those convicted of sodomy. We disagree.
It lies within the province of the legislature to define and
classify crimes and to determine the punishments for those crimes.
Hart v. Commonwealth, 131 Va. 726, 109 S.E. 582 (1921). No
punishment authorized by statute, even though severe, is cruel and
unusual unless it is one "prescribing a punishment in quantum so
severe for a comparatively trivial offense that it would be so out of
proportion to the crime as to shock the conscience . . . ." Id. at
745, 109 S.E. at 588. We find our consciences shocked neither by
appellants' sentences nor by the five-year maximum sentence provided
by the statute. Therefore, we find no imposition of cruel or unusual
punishment.
V. ESTABLISHMENT OF RELIGION
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.