RICHMOND — Richmond Circuit Court judges appointed an openly gay prosecutor to the bench Thursday, just a month after the General Assembly soundly rejected his nomination.
Tracy Thorne-Begland’s appointment to the city’s General District Court immediately revived one of the most heated issues of the legislative session, and it promised to incite more controversy next year, when legislators will have the chance to undo the temporary appointment.
The Circuit Court has authority to fill vacancies on the General District Court bench, but the appointments last only until the next legislative session.
The move was hailed by gay rights supporters and some conservatives, including Gov. Robert F. McDonnell (R), who less than a decade ago questioned whether sexually active gays could serve as judges because they were breaking the state’s now-invalidated anti-sodomy statute.
“The Governor believes Mr. Thorne-Begland is well-qualified to serve on the bench,” McDonnell spokesman Tucker Martin said in an e-mail. “He congratulates him on the appointment.”
The move infuriated Del. Robert G. Marshall (R-Prince William), who with the Family Foundation of Virginia helped persuade the General Assembly to reject Thorne-Begland’s nomination.
“I think it’s highly imprudent and arrogant on their part,” Marshall said. “I hope Virginia understands what’s going on here: They’re contesting the authority of the General Assembly. . . . This is an act of defiance on their part. When appointed officials get in fights with elected officials, they invariably lose.”
Richard D. Taylor, chief judge of the Circuit Court, issued a one-page order appointing Thorne-Begland to the General District Court of Richmond, beginning July 1 and ending 30 days after the start of the next General Assembly session.
“I am humbled by the Circuit Court’s decision,” Thorne-Begland said in a statement. “I look forward to serving the citizens of the City of Richmond as a jurist, and over the coming months, I hope that my service provides comfort to all Virginians that I remain committed to the faithful application of the laws and Constitutions of Virginia and the United States of America.”
The appointment came just two days after leaders of Richmond’s five largest law firms wrote a letter to the Circuit Court urging it to appoint the veteran Richmond prosecutor to the bench.
It came the same day that the Richmond Times-Dispatch published a letter that a Republican delegate sent to his caucus, saying that he had dropped his opposition to Thorne-Begland. Del. Richard L. Morris (R-Isle of Wight), a Navy veteran and military lawyer, said he no longer thinks that Thorne-Begland violated Navy regulations when he came out as a gay Navy pilot on national television 20 years ago.
In May, the General Assembly blocked Thorne-Begland’s appointment in General District Court, a low-level bench that his House sponsor compared to the institution depicted in old sitcom “Night Court” because it primarily handles misdemeanors.
Opponents said they objected to Thorne-Begland not because of his sexual orientation but because of his outspokenness on the subject of gay rights. Thorne-Begland came out on ABC’s “Nightline” to challenge the now-defunct policy against gays serving openly in the military. He has supported same-sex marriage and is raising twins with his partner.
But Marshall compared him to a polygamist during the House debate and said that because Virginia does not recognize same-sex marriage or civil unions, Thorne-Begland’s “life [is] a contradiction to the requirement of submission to the constitution.”
In a statement, Victoria Cobb, president of the Family Foundation of Virginia, said Thorne-Begland will have to uphold the constitution “and not apply his political agenda or viewpoint.”
“Because of our efforts, he will be watched very closely in the coming years, particularly if he is elevated to any higher court in the future,” Cobb said.
The issue emerged in Richmond last month just as same-sex marriage was becoming a hot topic in the presidential race. Democrats are hoping that and other hot-button issues will move swing voters away from Republicans in the fall.
Marshall, meanwhile, who lost to former governor George Allen in Tuesday’s Republican primary for U.S. Senate, had tried to use the issue against Allen, who said sexual orientation should not be a factor in selecting judges.
In a letter sent to the Republican caucus late last month, Morris said he had a change of heart about Thorne-Begland after doing some research. He concluded that Thorne-Begland’s “Nightline” appearance had not violated military regulations because he was not in uniform.
“My initial opposition to Mr. Thorne-Begland had nothing to do with his sexual orientation but was based on the belief that Mr. Thorne-Begland went on national television in his Navy uniform and spoke against standing Navy policy, which would be a violation of Navy regulations and a violation of the Uniform Code of Military Justice (UCMJ) because of the prohibition of being in uniform,” Morris wrote in the letter.
Thorne-Begland will need more than one about-face to survive another vote in the General Assembly. He needed 51 votes in the 100-member House to win appointment and received 33 in May. The Senate never voted on the matter.
“I would encourage those other legislators who dismissed Mr. Thorne-Begland’s judicial nomination to follow Delegate Morris’s lead and to research the actual record,” said Sen. A. Donald McEachin (D-Henrico). “I am certain they will come to the same thoughtful conclusion he did.”
Marshall was unswayed, saying that if Thorne-Begland was engaged in homosexual sex while in the military, he’s guilty of a felony.
“Sodomy is still a felony under the Uniform Code of Military Justice, today, as we speak,” Marshall said.