"VIRGINIA is for lovers," we are told, and this week a federal judge in Richmond ruled that the Old Dominion's laws could no longer conflict with its catchy motto. An unmarried couple cannot be prosecuted simply for living together, Judge Robert R. Merhige ruled. Nor can sexual relationships between consenting adults be punished by the state. Individuals have rights to free association, privacy and free expression that conflict with these statutes and render them unconstitutional.
Most singles, swinging and otherwise, were probably surprised to learn that conduct which has become commonplace -- though certainly not universally accepted -- was illegal in the first place. Movies encourage it, respected public figures practice it, and everyone talks about it. Even the Census Bureau has had to account for these relationships by creating a category for "persons of the opposite sex sharing living quarters."
Virginia was not alone in having such statutes, but many states have repealed criminal laws governing sexual conduct between consenting adults. They are more than an anachronistic vestige of our Puritan heritage; they can and have been used to harass people suspected of more serious crimes and to intimidate others whose views are controversial.
Government does have an interest in protecting public health and controlling some kinds of public behavior, but there is no need -- and no justification -- for the police power of the state's being brought into the bedrooms of the Commonwealth to enforce a moral code that should be a matter of personal conscience and choice. Justice Brandeis wrote wisely in dissent more than half a century ago about the right of individual privacy. The Framers of the Constitution, he said, "conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men." In matters of private sexual conduct by consenting adults, surely this is the best policy for any state to observe.