As sex between unmarried persons was criminalized under Virginia's anti-fornication statute,[2] Ziherl filed a demurrer in response to Martin's suit.

Judge Theodore J. Markow rejected Martin's argument that the statute was no longer valid after Lawrence v. Texas, in which the U.S. Supreme Court found unconstitutional a Texas law criminalizing homosexual sodomy as an infringement upon the liberty of adults to engage in private and consensual intimate conduct under the due process clause of the Fourteenth Amendment to the United States Constitution.

On appeal, Ziherl argued that Martin lacked standing to challenge the constitutionality of the statute because she was under no threat of prosecution, as the law had not been enforced against consenting adults since the mid-19th century.

[4] Because the conduct by which Martin was allegedly injured could not be considered illegal, Zysk did not apply and she could proceed with her suit against Ziherl in the Richmond Circuit Court.

The Virginia Supreme Court interpreted this to mean that all state interests must be insufficient to justify a prohibition on private, consensual sexual conduct, rather than only those advanced by Texas to support its statute in Lawrence.