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Law experts challenge Virginia lawmaker Bob Marshall on 'sodomy is not a civil right' comment

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Virginia Republican delegate Robert Marshall says Tracy Thorne-Begland's past activism makes him unfit to serve as a judge.

Law experts are taking issue with a Virginia legislator’s comment that “sodomy is not a civil right” in explaining why he opposed a gay prosecutor’s bid to become a judge.

Virginia GOP delegate Bob Marshall spearheaded the effort to block Tracy Thorne-Begland, an openly gay prosecutor in Richmond, from becoming a judge, saying the attorney’s past activism and outspokenness on gay rights could bias his decisions on the bench.


The Virginia House of Delegates this week voted to reject Thorne-Begland’s bid to  become a general district court judge in Richmond.

Speaking Thursday on CNN’s “Starting Point,” Marshall expounded on his reasoning.

“Dr. Martin Luther King and Rosa Parks never took an oath of office that they broke. Sodomy is not a civil right,” he said.

Marshall argued that Thorne-Begland’s past advocacy of gay rights would interfere with his neutrality on the bench, particularly in cases involving homosexuals. “He can be a prosecutor if he wants to, but we don't want advocates as judges," Marshall said.

William Eskridge, a Yale Law School professor and author of “Dishonorable Passions,” a book about the history of sodomy laws in America, rejected the contention that sodomy isn’t a civil right. He pointed to the U.S. Supreme Court’s landmark 2003 Lawrence vs. Texas decision, which struck down the criminal sodomy law in Texas – and by extension, other states – as unconstitutional.

“The Supreme Court ruled in Lawrence that anal or oral sex, commonly known as sodomy, when performed in private by consenting adults, is constitutionally protected -- which makes it a civil right,” Eskridge said.

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Though the Lawrence case involved two gay men arrested for having sex in one of the men’s apartment, Eskridge noted that the protection applied equally to heterosexuals, since the overwhelming majority of cases of sodomy occur between men and women.

“The representative has the same civil right as the gay prosecutor,” Eskridge said of Marshall.

“That is something you have a constitutional right to do. Adults have that right without being subject to criminal punishment,” agreed Kim Forde-Mazrui, a University of Virginia School of Law professor.

Mazrui also took issue with Marshall’s suggestion that Thorne-Begland’s sexual orientation could hamper his impartiality as a judge.

“If you mean that people are always biased in favor of members of their own group then that would suggest that a straight male or a white judge could not be impartial in a case involving a crime between a straight and a gay person, a man and woman, or a white and black person -- which would render most judges and juries suspect by his conception,” Mazrui said.

“I think that kind of categorical presumption is misguided and there’s no support for that,” added Theodore Ruger, a law professor the University of Pennsylvania. “Many judges -- most famously judges like Thurgood Marshall and Ruth Bader Ginsburg --  were well-known advocates before taking the bench and they went on to distinguished careers.”

Thorne-Begland, a former fighter pilot who lives with his partner and two adopted children, came out as a gay Naval officer 20 years ago to challenge the military's now-defunct "don't ask don't tell" policy, according to the Richmond Times-Dispatch. The announcement triggered his honorable discharge from the Navy. He has spoken out frequently on gay rights since then.

His boss, Richmond Commonwealth's Attorney Michael N. Herring, has said Thorne-Begland “would have been an outstanding judge.”

“It's hard to think about what happened in the General Assembly and not conclude that it's a form of bigotry,” Herring told reporters on Tuesday.

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