An article in Feb. 8 editions said that a federal appeals court in Richmond upheld Virginia's laws against unmarried cohabitation and fornication. The court threw out a suit on the issue, but did not rule on the constitutionality of the Virginia statute against unmarried cohabitation.
A federal appeals court here today upheld Virginia's laws against unmarried cohabitation and fornication.
The 4th U.S. Circuit Court of Appeals threw out a suit by a Richmond man and woman in their early twenties, saying the couple had never been prosecuted and had no legal basis for filing the complaint, the couple's attorney, Michael Morchower, told reporters.
The opinion by the three-judge appellate panel is to be released officially on Monday.
U.S. District Judge Robert R. Merhige Jr. ruled a year ago that the law, which does not address homosexual rights, was overly broad and infringed on constitutional rights of women, married or not, to bear children.
"All individuals have a constitutional right to procreate," Merhige wrote. "Implicit in this decision is the right to engage in private heterosexual intercourse."
The appeals decision chided Merhige for failing to exercise judicial restraint and said the legislature must play a dominant role in initiating changes in the law, according to attorneys familiar with the case.
In a key finding, according to the attorneys, the appeals panel wrote that the U.S. Constitution "schools federal judges in patience; we must await specific disputes arising from the actions of those primarily responsible for the social policy. Otherwise, we discard our robes for legislative hats without the electoral accountability that legitimizes the legislative product or executive enforcement."
A spokesman for the American Civil Liberties Union declined to comment today on whether the decision might be pursued further.
Under Virginia laws in effect since the early 1800s, fornication and cohabitation are misdemeanors. Persons who "lewdly and lasciviously" live together are subject to fines of $500 for a first offense. A second offense carries a $1,000 fine and a possible year in jail.
The maximum fine for fornication by an unmarried person is $100.
Gov. Gerald L. Baliles, who was serving as state attorney general when the lawsuit was initiated, appealed Merhige's ruling last March while Baliles was in the midst of his campaign for governor.
The attorney general's office argued that the laws were needed to promote "traditional marital and family relationships."
Michael A. Sarahan, an assistant city attorney in Richmond who participated in the case, praised the decision today and said it "accurately reflects the situation" the city sought to protect. No one had been threatened with prosecution, he said.
When Merhige ruled, his decision was hailed by privacy advocates as being part of a trend toward limiting government intrusion into personal, private conduct.
Morchower argued that the laws are selectively enforced, if at all, and can be used "as weapons by the police."
Morchower's clients said in affidavits that fear of prosecution had led them to abstain from sex and intruded on the right "to happiness as single persons."