On October 7, the first day of its October 2013 Term, the Supreme Court announced that it had denied petitions for certiorari in two pending LGBT-related cases, MacDonald v. Moose from the 4th Circuit and Dixon v. University of Toledo from the 6th Circuit.
In MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013), cert. denied sub nom Moose v. MacDonald, No. 12-1490, 2013 WL 3211338, the 4th Circuit held that Virginia’s sodomy law was facially unconstitutional in light of the Supreme Court’s 2003 decision in Lawrence v. Texas, which had invalidated the Texas Homosexual Conduct Act. Unlike the Texas statute, which only applied to same-sex conduct, the Virginia sodomy law broadly applies to all acts of anal or oral sex, regardless of the genders or ages of the participants or the location of the activity. In this case, the state prosecuted and convicted William MacDonald for soliciting a young woman to engage in oral sex with him in a parked car.
The solicitation statute applies only to criminal conduct, and thus incorporated by reference the sodomy law. MacDonald argued in defense that his conduct was protected under Lawrence, but the Virginia courts took the position that because the woman was only 17, and thus a minor, his conduct was not protected because Lawrence did not protect sexual conduct involving minors. After his conviction was upheld by the Virginia Supreme Court, he filed a federal habeas corpus action challenging the constitutionality of his conviction. The district court denied his petition, but a 4th Circuit panel voted 2-1 to reverse, finding that the broad Virginia sodomy law was facially unconstitutional under Lawrence. Attorney General (and now Republican candidate for governor) Ken Cuccinelli petitioned for certiorari, arguing that Lawrence was an “as applied” decision, and that the Virginia sodomy law should be construed to apply only to conduct not protected under Lawrence, including the conduct of Mr. MacDonald. His petition was denied without comment or recorded dissent. It will be interesting to see whether the Virginia legislature, which has stubbornly refused to amend or repeal the sodomy law to bring it into compliance with Lawrence, will take any action now that this case is over.
In Dixon v. University of Toledo, 702 F.3d 269 (6th Cir. 2012), petition for rehearing en banc denied (2013), cert. denied, No. 12-1402, 2013 WL 2357630, the 6th Circuit held that the University did not violate the 1st Amendment free speech rights of Crystal Dixon, an administrator who was discharged after she published a letter to the editor in a community newspaper articulating views about homosexuality that the University administration considered to be unacceptable for a person in her position. The district court and court of appeals rejected her 1st Amendment claim, having found that she was speaking as an employee of the public university, and thus her speech was not protected by the 1st Amendment and the University could discharge her if it found her statements to be inconsistent with its policies concerning sexual orientation. Her petition was denied without comment or recorded dissent. The decisions below seem consistent with the Court’s precedents on public employee speech under the 1st Amendment. When an employee is speaking in her capacity as an employee, the public employer has a right to determine the content of her speech as representing the public employer, and to discharge the employee for disseminating a message contrary to the employer’s policies.Tags: Crystal Dixon, Dixon v. University of Toledo, freedom of speech, Ken Cuccinelli, MacDonald v. Moose, Moose v. MacDonald, public employee speech, sexual orientation, sodomy laws, Supreme Court of the United States, University of Toledo, Virginia sodomy law