New York Law School

Art Leonard Observations

Posts Tagged ‘MacDonald v. Moose’

Supreme Court Refuses to Review Some Pending LGBT-Related Cases: Virginia Sodomy Law; University Discharge of Homophobic Administrator

Posted on: October 9th, 2013 by Art Leonard No Comments


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.

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

Posted on: March 13th, 2013 by Art Leonard 1 Comment

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.