4th Circuit Panel Debates Scope of Lawrence v. Texas; Majority Strikes Virginia Sodomy Law

Did Lawrence v. Texas, the U.S. Supreme Court’s 2003 decision holding that the Texas Homosexual Conduct Law violated the 14th Amendment Due Process clause, firmly establish a broad principle of federal constitutional law, or was it a narrow ruling that a state sodomy law cannot be used to prosecute private, consensual adult homosexual conduct?  A three-judge panel of the U.S. Court of Appeals for the 4th Circuit, based in Richmond, Virginia, debated that question in a March 12 decision, MacDonald v. Moose, 2013 Westlaw 935778, a majority ruling that Virginia’s sodomy law is clearly unconstitutional, while a dissenter argued that the law was constitutional as applied to the case of William Scott MacDonald.

According to the majority opinion by Circuit Judge Robert Bruce King, construing Lawrence requires taking account of the Supreme Court’s overruling of Bowers v. Hardwick, the 1986 decision that upheld the constitutionality of Georgia’s sodomy law.  In Lawrence, the Supreme Court majority said that Bowers was wrong when it was decided and should be overruled.  To King (and Judge Diana Gribbon Motz, who joined his opinion), this inevitably meant that the Virginia sodomy law, similar to the Georgia law considered in Bowers, must be unconstitutional on its face.  That being the case, soliciting sodomy could not be a criminal act, and the woman involved in this case was old enough to consent in light of other Virginia criminal statutes.

Dissenting Judge Albert Diaz saw things differently, pointing out that the Lawrence Court was careful to specify what it was and was not deciding, emphasizing that the case involved private, consensual adult sex, and that the Court was not considering any other circumstances.

In the case before the 4th Circuit, William Scott MacDonald was seeking a writ of habeas corpus, challenging his conviction under a Virginia solicitation statute.  MacDonald, an adult man, was convicted of criminal solicitation of oral sex with a 17-year-old woman.  In order for his solicitation to be a crime, the act he was soliciting would itself have to be a crime, and the Virginia courts relied on the sodomy law, which the legislature has refused to repeal despite the Lawrence ruling casting doubt on its constitutionality.  At all levels of the Virginia court system, the courts took the position that MacDonald’s conviction was constitutional because he was soliciting oral sex from a minor, and in Lawrence the Supreme Court was deciding whether the Texas law could be used to prosecute consenting adults.  Even the federal trial judge who heard MacDonald’s pro se petition for the writ of habeas corpus agreed with the Virginia courts.

Judge King wrote, “In Lawrence, the Supreme Court plainly held that statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty assured by the Due Process Clause of the Fourteenth Amendment.”  The Virginia law makes no distinctions between private and public conduct, consensual or nonconsensual conduct, or conduct involving people of different ages.  It just broadly outlaws all acts of oral and anal sex, and, thus, was facially unconstitutional, according to the majority of the panel.  King found that it would violate the respective roles of courts and legislatures for the court to effectively revise the Virginia sodomy law in order to preserve its constitutionality by applying it solely to cases falling outside the specific factual parameters of Lawrence.  Judge Diaz found, to the contrary, that such an approach is supported by precedent, construing a statute narrowly to preserve its constitutionality being a well-established procedure for appellate courts, and that application of the law to MacDonald is constitutional.

Interestingly, all three judges were appointed by Democratic presidents: Bill Clinton apointed Judge Motz, and Barack Obama appointed Judges King and Diaz.  Given its resistance to revising its sodomy law, one suspects that Virginia will seek en banc review from the 4th Circuit, or perhaps review from the Supreme Court.

One thought on “4th Circuit Panel Debates Scope of Lawrence v. Texas; Majority Strikes Virginia Sodomy Law

  1. If one checks the Legislative History of 18.2-361(A) they will note that since BEFORE Lawrence v. Texas, and as early as 2001, the Virginia Legislature has attempted to revamp this old law to “make it fit.” And in 2004, the attempted BILL began, “In keeping with Lawrence v. Texas…” So, this telling history damns what the judiciary did to MacDonald. And in affirming McDonald [sic] v. Commonwealth, the VA SC made matters worse for homosexual teens who now cannot do what their heterosexual peers can do (until age 18) without running afoul of the law —

    And like you said in your Summer 2007 Note, this created a bifurcation…not at all the judiciary’s job.

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