A man and a woman were convicted Monday of engaging in an illegal massage in a Roanoke motel room, but it wasn't just the sexual nature of the $140 massage that got them in trouble.

It was also because they were a man and a woman.

Darlene A. Rangel and Kevin V. Stanley were each fined $50 after being convicted of violating a rarely used city ordinance that forbids paid massages between members of the opposite sex -- but not between two people of the same sex.

Stanley's attorney, Patrick Kenney, argued that the ordinance is unconstitutional because it treats same-sex and opposite-sex massages differently.

"Especially in these political times when we have a [proposed] constitutional amendment banning marriage between same-sex partners," Kenney said.

"They're saying that homosexuals can't marry, but they can go out and do things that heterosexuals can't do. That's probably the only instance in the state of Virginia where they're giving homosexuals the benefit of the doubt."

Although General District Court Judge Skip Burkart rejected Kenney's argument, the defense attorney said he plans to appeal to circuit court.

The ordinance in question was passed in 1976, when city council was cracking down on the illicit massage parlor business that Williamson Road was once known for.

Section 21-144 of the city code reads: "It shall be unlawful for any person to administer, for hire or reward, to any person of the opposite sex any massage, any alcohol rub or similar treatment, any fomentation, any bath or any electric or magnetic treatment." Convictions carry a fine of up to $500.

The law does not apply to licensed physical therapists or other professionals such as doctors and chiropractors, and to barbers and beauticians who limit their work to the shoulders and above.

Police enforce the ordinance only rarely, usually when a prostitution investigation fails to produce evidence of actual sex for money. Assistant Commonwealth's Attorney John McNeil said he could recall just one other "massage by opposite sex" case in his six years as a city prosecutor.

"I think it's safe to say that the police department is not going out on a nightly basis" to enforce the law, McNeil said.

In court Monday, detective M.L. Maddy testified that a tip from an informant led him to Room 141 of the Rodeway Inn on Orange Avenue Northeast the night of Sept. 12. He gave the following account of what happened next:

When Maddy tapped on the window, a woman wearing only a towel pulled the curtains open.

She told him to go away, saying, "We're trying to have sex." She then closed the curtains. When he knocked on the window a second time, the woman threatened to call police -- at which point Maddy identified himself as a police officer and was allowed into the room.

Inside he found Stanley, 35, of Sanford, N.C., also wearing nothing but a towel. Stanley told the officer he had given Rangel $140, but it was not for sexual intercourse. Both Stanley and Rangel, 29, of Roanoke, told the officer they were engaging in sexual massage and nothing more. Efforts to reach Rangel, who was not represented by an attorney, were unsuccessful.

McNeil conceded that had Rangel and Stanley been members of the same sex, police could not have arrested them. He admitted that Kenney raised a "good argument" but responded by citing a 1976 ruling by a federal judge on the same law.

That case involved the operators of a Roanoke massage parlor who said they would be forced out of business by what they considered an unconstitutional law regulating their profession. Although the plaintiffs raised the same equal protection issue that Kenney did, then-Judge Ted Dalton decided the case on two different claims: whether the ordinance violated their privacy rights and their freedom to associate.

The "purely commercial" aspect of the massage parlor afforded it no such constitutional protection, Dalton wrote in dismissing the lawsuit.

It's hard to say how the same argument might play out now, said Kent Willis of the American Civil Liberties Union of Virginia.

"These laws do appear to be hopelessly outdated," Willis said, "and an equal protection argument is a good argument to make against them."