Present: All the Justices
MUGUET S. MARTIN
v. Record No. 040804 OPINION BY JUSTICE ELIZABETH B. LACY
January 14, 2005
KRISTOPHER JOSEPH ZIHERL
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
In this appeal we consider whether Zysk v. Zysk, 239 Va.
32, 404 S.E.2d 721 (1990), which disallows tort recovery for
injuries suffered while participating in an illegal activity,
precludes Muguet S. Martin from maintaining a tort action
against Kristopher Joseph Ziherl for injuries allegedly
inflicted during sexual intercourse, a criminal act of
fornication proscribed by Code § 18.2-344, in light of the
decision of the Supreme Court of the United States in Lawrence
v. Texas, 539 U.S. 558 (2003), holding unconstitutional a
Texas penal statute prohibiting certain sexual acts.
FACTS
Because the case was decided on demurrer, we recite the
facts contained in the pleadings and all reasonable inferences
therefrom in the light most favorable to the plaintiff.
McDermott v. Reynolds, 260 Va. 98, 100, 530 S.E.2d 902, 903
(2000). Martin and Ziherl were unmarried adults in a sexually
active relationship from approximately October 31, 2001
through November 3, 2003. Martin experienced a vaginal
outbreak in June 2003, which her physician diagnosed as
herpes. Martin filed a motion for judgment against Ziherl
alleging that he knew he was infected with the sexually
transmitted herpes virus when he and Martin were engaged in
unprotected sexual conduct, knew that the virus was
contagious, and failed to inform Martin of his condition. In
the two-count motion for judgment, Martin asserted claims of
negligence, intentional battery and intentional infliction of
emotional distress and sought compensatory and punitive
damages.
Ziherl filed a demurrer asserting that Martin's injuries
were caused by her participation in an illegal act and
therefore, under Zysk, the motion for judgment did not state a
claim upon which relief could be granted. Following a
hearing, the trial court applied Zysk and sustained Ziherl's
demurrer holding that Lawrence did not "strike down" Code
§ 18.2-344 and that valid reasons such as the protection of
public health and encouraging marriage for the procreation of
children are "rationally related to achieve the objective of
the statute." We awarded Martin an appeal.
DISCUSSION
Before turning to the merits of Martin's appeal, we
consider Ziherl's assertion that Martin lacks "standing" to
challenge the constitutionality of Code § 18.2-344. In making
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his "standing" argument, Ziherl refers to the lack of real or
threatened prosecution of Martin under Code § 18.2-344 and
states that invalidation of the statute would not impact her
liberty interest but, instead, would only allow her to
maintain her action for damages. Regardless of the approach,
well established law precludes us from considering Ziherl's
"standing" challenge.
A basic principle of appellate review is that, with few
exceptions not relevant here, arguments made for the first
time on appeal will not be considered. Ziherl did not assert
before the trial court that Martin lacked "standing" to
challenge the constitutionality of Code § 18.2-344. We have
repeatedly held that challenges to a litigant's standing must
be raised at the trial level, and the failure to do so
precludes consideration of a litigant's standing by this Court
on appeal. In Walt Robbins, Inc. v. Damon Corp., 232 Va. 43,
348 S.E.2d 223 (1986), the Court considered whether the
appellee's mechanics' lien was unenforceable for failure to
make the trustees and the beneficiary of the antecedent deed
of trust parties to the suit to enforce the lien. Id. at 46,
348 S.E.2d at 225. On appeal, the appellee challenged the
"appellants' standing to assert the rights of the trustees and
beneficiary," but the Court refused to consider this argument,
finding that it had been waived for failure to preserve it in
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the lower court. Id. at 46 n.2, 348 S.E.2d at 226 n.2. The
Court concluded that "a standing question cannot be raised for
the first time on appeal." Id.; see also Princess Anne Hills
Civic League v. Susan Constant Real Estate Trust, 243 Va. 53,
59 n.1, 413 S.E.2d 599, 603 n.1 (1992)(refusing to consider
contention that defendant lacked standing to maintain its
cross-bill because issue not raised in pleadings or referred
to the factfinder in earlier proceedings); Shenandoah Pub.
House, Inc. v. Fanning, 235 Va. 253, 258 n.1, 368 S.E.2d 253,
255 n.1 (1988) (refusing to notice standing argument on brief
because it was neither raised in trial court nor assigned as
error); Andrews v. Cahoon, 196 Va. 790, 805, 86 S.E.2d 173,
181 (1955) (declining to consider the capacity of an executrix
to maintain a wrongful death action because the issue was
raised for first time on appeal); Crawley v. Glaze, 117 Va.
274, 277, 84 S.E. 671, 673 (1915) (finding that a demurrer
cannot be sustained upon an allegation of lack of standing
when the record from the circuit court fails to indicate
whether such an argument was presented below and consequently
is an insufficient record for an appellate court to consider
the argument on appeal).
While we will not entertain a standing challenge made for
the first time on appeal, the Court will consider, sua sponte,
whether a decision would be an advisory opinion because the
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Court does not have the power to render a judgment that is
only advisory. See Commonwealth v. Harley, 256 Va. 216, 219-
20, 504 S.E.2d 852, 854 (1998). In the case at bar, the
Court's decision on the constitutionality of Code § 18.2-344
will determine Martin's right to pursue her tort claim for
damages. Thus, we find that this case presents a justiciable
issue and a decision by this Court will not be an advisory
opinion.
Martin asserts that the reasoning of the Supreme Court of
the United States in Lawrence renders Virginia's statute
criminalizing the sexual intercourse between two unmarried
persons, Code § 18.2-344, unconstitutional. The issue in
Lawrence, as stated by the Court, was "whether the petitioners
were free as adults to engage in the private conduct in the
exercise of their liberty under the Due Process Clause of the
Fourteenth Amendment to the Constitution." Id. at 564.
Lawrence had been convicted of violating a Texas statute that
made it a crime for two persons of the same sex to engage in
certain intimate sexual conduct described as the act of
sodomy. Tex. Penal Code Ann. § 21.06(a) (2003). Lawrence
challenged his conviction in the Texas courts, asserting that
the Texas statute was unconstitutional, but the Texas court
rejected that challenge, relying on Bowers v. Hardwick, 478
U.S. 186 (1986). Lawrence, 539 U.S. at 363. In Bowers, the
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Supreme Court had held that a Georgia statute making it a
crime to engage in sodomy, regardless of the sex of the
participants, was constitutional. 478 U.S. at 189.
Acknowledging that the Texas court properly considered
Bowers as "then being authoritative," Lawrence, 539 U.S. at
563, the Supreme Court reexamined its prior decision and
concluded that "Bowers was not correct when it was decided,
and is not correct today." Id. at 578. The Court explained
that the liberty interest at issue was not a fundamental right
to engage in certain conduct but was the right to enter and
maintain a personal relationship without governmental
interference. Id. at 567. The Court determined that the
statutes proscribing certain acts between persons of the same
sex sought to control a personal relationship that is "within
the liberty of persons to choose without being punished as
criminals." Id. The Court explained that the constitution
protects the liberty interests of persons to maintain a
personal relationship "in the confines of their homes and
their own private lives" and that an element of that
relationship is its "overt expression in intimate conduct."
Id. at 567.
In overruling Bowers, the Court also stated that the
analysis of Justice Stevens in his dissenting opinion in
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Bowers should have been applied in that case and "should
control" in Lawrence. Id. at 578. That analysis is:
Our prior cases make two propositions abundantly
clear. First, the fact that the governing
majority in a State has traditionally viewed a
particular practice as immoral is not a
sufficient reason for upholding a law
prohibiting the practice; neither history nor
tradition could save a law prohibiting
miscegenation from constitutional attack.
Second, individual decisions by married persons,
concerning the intimacies of their physical
relationship, even when not intended to produce
offspring, are a form of "liberty" protected by
the Due Process Clause of the Fourteenth
Amendment. Moreover, this protection extends to
intimate choices by unmarried as well as married
persons.
Id. at 577-78. Applying Justice Stevens' analysis, the Court
stated, "The State cannot demean their existence or control
their destiny by making their private sexual conduct a crime.
Their right to liberty under the Due Process Clause gives them
the full right to engage in their conduct without intervention
of the government." Id. at 578.
We find no relevant distinction between the circumstances
in Lawrence and the circumstances in the present case.* As
described in Justice Stevens' rationale adopted by the Court
in Lawrence, decisions by married or unmarried persons
regarding their intimate physical relationship are elements of
*
Indeed, but for the nature of the sexual act, the
provisions of Code § 18.2-344 are identical to those of the
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their personal relationships that are entitled to due process
protection. Using this rationale, the Supreme Court found
that the Texas statute criminalizing a specific sexual act
between two persons of the same sex violated the Due Process
Clause of the Fourteenth Amendment because such statute
improperly abridged a personal relationship that was within
the liberty interest of persons to choose. Id. at 578-79. We
find no principled way to conclude that the specific act of
intercourse is not an element of a personal relationship
between two unmarried persons or that the Virginia statute
criminalizing intercourse between unmarried persons does not
improperly abridge a personal relationship that is within the
liberty interest of persons to choose. Because Code § 18.2-
334, like the Texas statute at issue in Lawrence, is an
attempt by the state to control the liberty interest which is
exercised in making these personal decisions, it violates the
Due Process Clause of the Fourteenth Amendment.
Ziherl argues, and the trial court held, that Code
§ 18.2-344 withstands constitutional scrutiny because "[v]alid
public reasons for the law exist," including protection of
public health and "encouraging that children be born into a
family consisting of a married couple." Regardless of the
Texas statute which Lawrence determined to be
unconstitutional.
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merit of the policies referred to by the trial court, the
Supreme Court in Lawrence indicated that such policies are
insufficient to sustain the statute's constitutionality. Id.
at 578.
The Supreme Court did not consider the liberty right
vindicated in Lawrence as a fundamental constitutional right
which could be infringed only if the statute in question
satisfied the strict scrutiny test. Rather, the Court applied
a rational basis test, but held that "[t]he Texas statute
furthers no legitimate state interest which can justify its
intrusion into the personal and private life of the
individual." Id. This statement is not limited to state
interests offered by the state of Texas in support of its
statute, but sweeps within it all manner of states' interests
and finds them insufficient when measured against the
intrusion upon a person's liberty interest when that interest
is exercised in the form of private, consensual sexual conduct
between adults. As we have said, this same liberty interest
is invoked in this case when two unmarried adults make the
choice to engage in the intimate sexual conduct proscribed by
Code § 18.2-344. Thus, as in Lawrence, the Commonwealth's
interests do not warrant such encroachment on personal
liberty.
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Therefore, applying the reasoning of Lawrence as Martin
asks us to do, leads us to conclude that Code § 18.2-344 is
unconstitutional because by subjecting certain private sexual
conduct between two consenting adults to criminal penalties it
infringes on the rights of adults to "engage in the private
conduct in the exercise of their liberty under the Due Process
Clause of the Fourteenth Amendment to the Constitution." Id.
at 564.
It is important to note that this case does not involve
minors, non-consensual activity, prostitution, or public
activity. The Lawrence court indicated that state regulation
of that type of activity might support a different result.
Our holding, like that of the Supreme Court in Lawrence,
addresses only private, consensual conduct between adults and
the respective statutes' impact on such conduct. Our holding
does not affect the Commonwealth's police power regarding
regulation of public fornication, prostitution, or other such
crimes.
We now turn to the application of Zysk to this case. The
rule applied in Zysk was that "a party who consents to and
participates in an immoral and illegal act cannot recover
damages from other participants for the consequence of that
act." 239 Va. at 34, 404 S.E.2d at 722 (quoting Miller v.
Bennett, 190 Va. 162, 164-65, 56 S.E.2d 217, 218 (1949)). We
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adhere to that rule. However, in light of our determination
regarding the constitutionality of Code § 18.2-344, the sexual
activity between Martin and Ziherl was not illegal and "the
fact that the governing majority in a State has traditionally
viewed a particular practice as immoral is not a sufficient
reason for upholding a law prohibiting the practice."
Lawrence, 539 U.S. at 577. Therefore, Zysk is no longer
controlling precedent to the extent that its holding applies
to private, consensual sexual intercourse.
For the reasons stated above, we will reverse the
judgment of the trial court and remand the case for further
proceedings consistent with this opinion.
Reversed and remanded.
CHIEF JUSTICE HASSELL, concurring.
I concur in the judgment of the majority.
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