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Botswana High Court Declares Sodomy Law Unconstitutional

Posted on: June 14th, 2019 by Art Leonard No Comments

The High Court of Botswana ruled on June 11 that three provisions of the country’s Penal Code that collectively make soliciting or participating in gay sex a crime violate several provisions of the Constitution.  The 2.4-million person republic, a member of the British Commonwealth of Nations, is centrally situated north of the border with South Africa.  Formerly known as the British “protectorate” of Bechuanaland, it achieved independent rule in 1965 and formally became the Republic of Botswana in 1966, adopting a Constitution with broad protection for human rights.

The Government has the right to appeal the High Court ruling to the Court of Appeal, a constitutional court whose membership consists mainly of judges from other British Commonwealth countries.  However, there were no immediate press reports about the intention of the Government to appeal, and last year, President Mokgweetsi Masisi delivered a speech “publicly signaling his support for same-sex relations” and arguing that LGBTQ citizens “deserved to have their rights respected,” according to a “Country Report” by The Economist Intelligence Unit published on-line on June 13, discussing the ruling.

The case challenging the constitutionality of the gay sex ban did not arise out of a prosecution.  Rather, a courageous individual, Letsweletse Motshdiemang, represented by three local attorneys, filed an application in the High Court seeking a declaration of the invalidity of law, arguing that it violated his constitutional rights.  According to the court’s opinion by Judge Michael Leburu, the Applicant is a 24-year-old student at the University of Botswana who identifies as “homosexual.”

Leburu’s opinion, describing the Applicant’s life, stated: “He does not know why he likes men and does not know why he is different from other men who love women.  He has accepted to live with that condition and it has become his identity.  Currently, he is in a sexually intimate relationship with a man.” Since the criminal laws authorize up to seven years in prison for gay sex, filing an explicit account of his developing sexual identity was very courageous on the Applicant’s part.  Throughout the litigation he was referred to by his initials as L.M., but the court’s June 11 decision names him in full, in recognition of the liberation the opinion brings for LGBTQ Batswana.  (“Batswana” is the term for citizens of the country.)

After the Applicant filed his lawsuit, Lesbians, Gays and Bisexuals of Botswana, the nation’s LGBTQ rights organization usually referred to as LEGABIBO, was allowed to participate as amicus curiae (friend of the court) and supplied expert testimony in support of the lawsuit.

The court’s holding is well summarized by Judge Leburu in a few introductory sentences to the very lengthy opinion.  “Sections 164(a) and (c) and 165 of the Penal Code proscribe and criminalize sexual intercourse and/or attempt thereof between persons of the same sex and/or gender,” he wrote.  “Section 167 proscribes both public and private gross indecency.  What regulatory joy and solace is derived by the law, when it proscribes and criminalizes such conduct of two consenting adults, expressing and professing love to each other, within their secluded sphere, bedroom, confines and/or precinct?  Is this not a question of over-regulation of human conduct and expression, which has a tendency and effect of impairing and infringing upon constitutionally ordained, promised and entrenched fundamental human rights?  Our bill of rights, as entrenched and enshrined in our Supreme Law (the Constitution), is a manifestum of progressive, long lasting and enduring rights, which yearn for judicial recognition and protection.  Any limitation, in the enjoyment of such rights, therefore, ought to be reasonably justifiable within our hallowed democratic dispensation that subscribes to the rule of law, which recognizes and protects both the majority and minority rights and interests.”

A potential roadblock to victory in the case was a 2003 decision by the Court of Appeal, Kanane v. The State, which involved an actual prosecution of a gay man who appealed his conviction.  At that time, the Court of Appeal expressed the view that the country was not ready to accept homosexuality.  The new decision rejects Kanane, largely on the ground of changing public opinion and a variety of new constitutional arguments that had not been presented to the court in the older case.

Judge Leburu’s opinion emphasizes that the challenged laws were not of African origin, but rather were imported by the British during their administration of Bechuanaland, and were merely carried forward into the Botswana Penal Code during the 1960s as part of a general absorption of existing colonial law.  He also explained that the British laws were “traceable to the Bible,” recounting the story of Sodom and Gomorrah and its traditional interpretation “during the Middle Ages” as a condemnation of gay sex, as amplified in certain New Testament passages.  “Within the British Empire,” he wrote, “same sex activity was prohibited as it was deemed morally unacceptable to the British rulers.  In the incorporation of the offence of sodomy in the colonies, such was not preceded by any consultation with the local populace.”

Judge Leburu noted subsequent developments in Britain, culminating with the parliamentary committee headed by Lord Wolfenden, whose report recommending decriminalization was approved in the 1967 Sexual Offenses Act “which decriminalized same sex sexual intercourse,” noting the spread of decriminalization, either through legislation or judicial action, in countries which had at one time been British colonies, including South Africa and the United States.

“The repeal of the sodomy laws was greatly influenced, in large measure, by the inherent recognition of such laws as being discriminatory, invasive of personal dignity, privacy, autonomy, liberty and lastly, the absence of compelling public interest to intrude and regulate private sexual expression and intimacy between consenting adults,” wrote Leburu.

One defining characteristic of judicial decisions of major importance in British Commonwealth countries is the practice of extensive quotation from court opinions of other Commonwealth nations, and Leburu’s opinion is strewn with such quotations, including from the recent Supreme Court of India ruling striking down that nation’s sodomy law, which had also been imposed originally during British colonial rule.  The opinion also refers to the U.S. Supreme Court decision, Lawrence v. Texas, which struck down state sodomy sodomy laws in 2003, as well as rulings from South Africa and Canada.

The opinion decisively rejects narrow, literalistic constitutional interpretation, instead embracing the court’s role in developing constitutional interpretation for changing times.  “In construing the Constitution,” Leburu wrote, “I will accord and give meaning and interpretation which would render it effective.  The Constitution should thus be given a generous construction, which will not unjustifiably erode civil liberties.  A Constitution ought to be interpreted according to the imperatives of the prevailing socio and political context.”  He also insisted that the courts should “have regard to any relevant international treaty, agreement or convention,” and listed several that have been invoked by other courts in cases invalidating sodomy laws.

At the outset of his analysis, he rejected the Applicant’s argument that the statues were “void for vagueness,” as judicial interpretation over time had made clear which acts were prohibited.  However, on every other contention, he found that the Applicant had the better argument than the Government, finding valid claims under the right to privacy (which is explicitly protected in the Botswana Constitution) and constitutional guarantees of liberty, equality and dignity.  He referred to these guarantees as a “triumvirate” that “forms the core values of our fundamental rights, as tabulated and entrenched in Section 3 of the Constitution.”  He explained how the challenged laws violate each of these basic concepts.

In a phrase that was widely quoted in news reports about the opinion, Leburu wrote, “Sexual orientation is innate to a human being.  It is not a fashion statement or posture.  It is an important attribute of one’s personality and identity; hence all and sundry are entitled to complete autonomy over the most intimate decisions relating to personal life, including the choice of a partner.  The right to liberty therefore encompasses the right to sexual autonomy.”  His reference for this statement is to a South African Law Journal article from 1993 by Edwin Cameron, an out gay man who has served as a judge on South Africa’s Constitutional Court.  The opinion also quotes from writings of Michael Kirby, an out gay man who has served on Australia’s Supreme Court and also on Botswana’s Court of Appeal.

“By parity of reasoning and logic,” wrote Leburu, “the Applicant’s sexual orientation lies at the heart of his fundamental right to dignity.  It is his way of expressing his sexual feelings, by the only mode available to him. His dignity ought to be respected, unless lawfully restricted.”

Turning to the issue of discrimination, Leburu rejected the government’s argument that because the law was gender neutral and prohibited everybody from engaging in anal sex – the traditional interpretation of the “unnatural acts” language used in British colonial-era sodomy laws – it was not discriminatory.  Referring to arguments presented by LEGABIBO as amicus, Leburu wrote that “the nub and substance of the amicus case is that the provisions are discriminatory in effect, by denying him sexual expression and gratification, in the only way available to him, even if that way is denied to all.”  Heterosexuals have a legal sexual outlet, while homosexuals do not.

“It was further submitted,” he wrote, “that the word ‘sex’ in Section 3 of the Constitution should be generously and purposively interpreted to include ‘sexual orientation.’  On the basis of the formulated rules of constitutional construction or interpretation, I have no qualms whatsoever in determining that the word ‘sex’ in Section 3 thereof is generously wide enough to include and capture ‘sexual orientation,’ as I hereby determine.”  He referred to an earlier Court of Appeal ruling stating that the “enumerated grounds of discrimination” in the Constitution, which include “sex,” were “not hermetically sealed nor cast in stone.” This was because the framers of the Constitution intended to protect “all potentially vulnerable groups and classes, who would be affected for all time by discriminatory treatment.”  That earlier decision set out a view of living constitutionalism, contrary to “static” constitutional meaning championed in the United States by Justice Clarence Thomas and the late Justice Antonin Scalia.

Furthermore, he wrote, “To buttress and fortify this amplification and expansion of the word ‘sex,’ our Parliament has, in its graceful and usual wisdom, recognized that there may be discrimination, at the workplace, on account of sexual orientation, as shown by the Employment (Amendment) Act No. 10 of 2010, which amendment made it unlawful to terminate employment on the grounds of, inter alia, sexual orientation and gender, per Section 23(d).”  Thus, ironically, Botswana made it illegal to discriminate because of sexual orientation nine years ago, without repealing the laws against gay sex.

“The two forms of discrimination — namely sex and sexual orientation — are associable signifiers of a similar scope and content,” he continued.  “The constitutional discrimination, based on sex, is of wider scope and application, where discrimination based on sexual orientation, in the Employment (Amendment) Act, is of a narrower campus.  ‘Sexual orientation’ is thus subset or component of ‘sex.’”  He cited a United Nations Human Rights Committee ruling condemning the sodomy law in the Australian state of Tasmania to support this point, ruling under the International Covenant on Civil and Political Rights which, Leburu observed, Botswana had ratified in 2000.  And, he accepted the argument that the facially neutral laws are discriminatory in effect, and thus unconstitutional since unjustified by the Government.

Referring to the Government’s arguments, he wrote, “There is no scintilla or iota of justification, advanced for the derogation [of rights] in question  The only answer placed at the fore is that the impugned sections are not discriminatory, but, a contrario, this court has found otherwise.  The Respondent’s semblance of justification, can best be described as bare assertions and/or speculations that sexual anal penetration is contrary to public morality or public interest,” but such was not sufficient to justify violating a fundamental right.

Leburu then examined the morality argument in the absence of expert testimony from the Government.  “Even if the Respondent’s public interest or morality justification was to be subject to the criterion of ‘reasonable and justifiable in an open democratic society,’” he wrote, “such justification does not pass constitutional muster. The test of what is reasonably justifiable in a democratic society, is an objective one.  There is nothing reasonable and justifiable by discriminating against fellow members of our diversified society.  The State has failed to single out the objective that is intended to be satisfied by the impugned provisions.”

Furthermore, he noted that maintaining these laws was inconsistent with goals that had been identified in a nation-building exercise, called Botswana National Vision 2016, which included to be “A Compassionate, Just and Caring Nation,” and aspiring to be “an Open, Democratic and Accountable Nation” and “A Moral and Tolerant Nation.”  “To discriminate against another segment of our society pollutes compassion,” he insisted.  “A democratic nation is one that embraces plurality, diversity, tolerance and open-mindedness.  Democracy itself functions, so long as the differences between groups do not impair a broad substrate of shared values.  Our shared values are as contained in our National Vision.  Furthermore, the task of laws is to bring about the maximum happiness of each individual, for the happiness of each will translate into happiness for all.”

The opinion continues in this vein of somewhat high-flown rhetoric for several pages, concluding that the unnatural sex provisions should be stricken, and that the gross indecency provision (which had customarily been used to punish people for engaging in oral sex) should be limited to public acts, the word “private” to be stricken from the provision.  The court also ordered that the Government pay the Applicant’s costs of the litigation.

The courtroom in Gabarone, the nation’s capital, was crowded with LGBTQ activists when the opinion was announced by Judge Leburu, leading to an exuberant celebration.  Among those congratulating Botswana was the United States Department of State.  According to a June 13 report by Agence France Presse English Wire, State Department spokeswoman Morgan Ortagus, using the preferred method of governmental communication during the Trump Administration, tweeted: “We are pleased by #Botswana’s High Court decision to decriminalize same-sex relationships – an historic moment in protecting human rights for all.  Congrats to the brave people who worked for this outcome.  We hope other countries follow Botswana’s example.”

Federal Court Says Old Sodomy Conviction Cannot Be Basis for Current Sex Offender Registration Requirement

Posted on: December 16th, 2013 by Art Leonard No Comments

Finding that prosecuting a man for failing to register as a sex offender on the basis of an old conviction under an unconstitutional sodomy law would be “unthinkable,” U.S. District Judge Amy Totenberg granted a writ of habeas corpus to Charlton Green on December 9, directing that the State of Georgia release him from the obligations of probation to which he had been sentence.

Green, then age 20, and three friends, another young guy and two young women, were fooling around in a hotel room, and Green and the other guy got into sex.  This happened in Georgia in 1997, at which time the Georgia sodomy law was still in effect. It had been challenged in the U.S. Supreme Court in 1986 in the case of Bowers v. Hardwick, but the Supreme Court rejected the challenge.

Somehow, Charlton’s activity came to the attention of the police, and he was charged with violating the sodomy law.  He pled guilty, and was initially sentenced to probation as a first offender, but he violated the terms of probation and was convicted and sentenced in January 1999.  (By that time, the Georgia Supreme Court had declared, In Powell v. State (1998), that the state’s sodomy law was unconstitutional as applied to private, adult consensual activity, but evidently this made no difference to the court that sentenced Charlton in January 1999.)  Part of his sentence was to be designated as a sex offender and required to register with local law enforcement authorities wherever he was living.   Several years later, in 2003, the U.S. Supreme Court, ruling in a case involving the Texas Homosexual Conduct Law, overruled its 1986 decision in Bowers v. Hardwick, holding that private, adult consensual same-sex activity was protected under the Due Process Clause and could not be made the subject of criminal prosecution.  In 2003, the Court said that Bowers v. Hardwick was “wrong when it was decided.”

This means, logically, that in 1997 Charlton Green had pled guilty under an unconstitutional statute.

Dial forward to 2009.  Green’s mother fell ill with cancer, and he moved to her home to help care for her.  Contacting the local sheriff to register his presence slipped his mind.  But he was indicted and convicted in May 2009 in the Cherokee County Superior Court for failing to register as a sex offender.  The sole basis of his being a sex offender, of course, was the 1997 guilty plea under the unconstitutional sodomy law.  In response to this conviction in May 2009, Charlton was sentenced to 30 years in prison, two to actually serve and 28 on probation.   Charlton’s attorney at the trial failed to raise the issue that the law under which he had been originally convicted was unconstitutional.   After his conviction, Charlton got a new attorney and sought a new trial, raising the unconstitutionality issue for the first time and arguing that he had ineffective assistance from counsel in the first proceeding.  The trial court denied the motion, and the Georgia Court of Appeals affirmed the denial, saying that he could not show he had been prejudiced because his conduct in that hotel room was not “private” and thus not within the protection of the Powell and Bowers rulings.  While Charlton’s appeal was pending, he applied to the Pickens County Superior Court to get his original sodomy convicted vacated, and Judge Brenda Weaver vacated the conviction, finding “that the undisputed evidence supports Mr. Green’s claim to the protections of Powell and Lawrence,” but the Georgia Court of Appeals reversed this ruling on grounds of procedural irregularity.

After relating all of this, U.S. District Judge Amy Totenberg wrote, “Thus, as it stands, Green remains subject to the reporting requirement of O.C.G.A. Sec. 42-1-12 based on his conviction under a law that has been deemed unconstitutional.  On that basis, he petitions for a writ of habeas corpus.”  Charlton has finished serving his two year sentence, but remains subject to the 28 year probation sentence, so he remains eligible to seek the writ as somebody whose liberty remains constrained by the state.

Judge Totenberg decided that for purposes of deciding this petition, it is essentially irrelevant that Charlton’s original conviction has not been vacated and is not subject to appeal at this time.  However, she concluded that it was clear that Green received ineffective assistance of counsel in 2009 when his lawyer failed to raise the unconstitutionality of the sodomy law as a defense to his prosecution for failing to register. “The state cannot give legal effect to a conviction under an unconstitutional criminal statute,” wrote Totenberg.  “Convicting Green for failing to register as a sex offender solely because he was previously convicted under the unconstitutional anti-sodomy statute would amount to ‘state-sponsored condemnation’ of constitutionally protected behavior” she continued, citing both Lawrence v. Texas and the recent 4th Circuit decision, MacDonald v. Moose, which struck down the Virginia sodomy law in reliance on Lawrence.

Totenberg also rejected the state trial court’s reasoning that by pleading guilty to the sodomy charges, Charlton Green had “waived his defense” including any future defense based on the unconstitutionality of the sodomy law.  She wrote that it would not “comport with fundamental fairness and due process of law to allow a guilty plea to waive a constitutional challenge to the use of a conviction based on constitutionally protected, private consensual sexual conduct that cannot be criminalized.”

The judge also rejected the state trial court’s conclusion that although Powell and Lawrence had changed the law, “those changes did not apply to this factual situation because the conduct was not ‘private.'”  The trial court was undoubtedly relying on old cases that have held that for sexual conduct to be private, it must occur in an enclosed place in which only the two participants are present.  Under this reasoning, group sex involving more than two participants or sex taking place where non-participants are observing cannot be considered to be taking place in “private.”  Judge Totenberg rejected that idea, citing a 2000 Georgia Court of Appeals decision, Mauk v. State, 529 S.E.2d 197, which said “a private place is a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.”  By that standard, Totenberg found that the hotel room being used by the four young adults was a “private place.”  After citing prior Georgia cases holding that a hotel room is a “private place,” she wrote, “And the presence of two private, consenting observers does not transform the private act into a public one.  Here, the two women present in the hotel room during the sexual act were not random members of the public but personal friends.  While the Court recognizes that the presence of others might be relevant to the question of whether sexual conduct is private, the constitutional right to privacy of young adults engaging in consensual sexual conduct behind the closed doors of a hotel room is not vitiated by the simple fact that four people are in the room.”

She also anticipated any argument about the retroactivity of Powell and Lawrence, noting that Georgia courts had already accepted the proposition that “the rule established in Lawrence is a new rule of substantive law that may be applied retroactively to cases on collateral review.”  This would certain seem obvious from the Lawrence Court’s statement that Bowers v. Hardwick was wrong when it was decided, not just prospectively from 2003 on.

Totenberg drew an analogy to the Supreme Court’s ruling on interracial marriage in explaining why she was issuing a writ of habeas corpus to Green.  “Just as it is unthinkable that a conviction of miscegenation entered before Loving v. Virginia, 388 U.S. 1 (1967), was decided could be used after that decision to establish an element of a crime, so is it unthinkable that a conviction based on constitutionally protected private consensual sexual conduct entered before Powell or Lawrence was decided could be so used.  Counsel who fails to object to the use of an extant sodomy conviction that on its face raises serious concerns as to its constitutional validity has failed to provide effective assistance.”  Since Green did not have effective representation at his 2009 trial, his conviction had to be vacated.  Therefore, Totenberg both ordered that the conviction be vacated and that Green be “released from the sentence imposed,” and she ordered the State of Georgia to “take all actions necessary consistent with the holding of this Order.”

The lawyer who stuck with Green through this extended and time-consuming litigation and successfully argued for this relief is Stephen R. Scarborough.

Georgia Supreme Court Rejects Constitutional Challenge to Solicitation of Sodomy Statute, But Reverses Police Officer’s Conviction

Posted on: October 22nd, 2013 by Art Leonard 1 Comment

The Georgia Supreme Court has unanimously rejected a constitutional challenge to the state’s law making it a misdemeanor to solicit somebody to engage in anal or oral sex, but at the same time reversed a police officer’s conviction for soliciting a 17-year-old high school student, finding that the statute, narrowly construed to avoid constitutional problems, had not been violated.  The case is Watson v. State, 2013 Ga. LEXIS 860 (Oct. 21, 2013).

Georgia’s sodomy statute makes it a felony for anybody to engage in anal or oral sex, regardless of the age of the parties, presence or absence of consent, or the place where the conduct occurs.  The solicitation statute makes it a misdemeanor to solicit an act that violates the sodomy statute.  In 1986, the U.S. Supreme Court rejected a constitutional challenge to the sodomy statute in Bowers v. Hardwick.  In 1998, the Georgia Supreme Court  found that a right to privacy in the state constitution required a narrow construction of the sodomy statute, in Powell v. State, 510 S.Ed.2d 18 (1998).  Under this limiting construction, private acts of anal or oral sex between consenting adults would not be subject to criminal penalty.  In 2000, in Howard v. State, 527 S.E.2d 194, the court held that the natural consequence of the limiting construction of the sodomy statute extended to the solicitation statute.  Thus, even though the solicitation statute, by its terms, extended to all solicitation for anal or oral sex, the court avoided constitutional free speech issues by narrowing its application to solicitation of acts that would be illegal under the narrowly construed sodomy statute.

This case arose when an adult police officer, James Watson, attempted to interest a 17-year-old high school student in having sex with him.  Watson responded to a police call at a house where the boy was a guest, and gave the boy a ride home in his police car.  During the ride, Watson made his first solicitation, and followed up with facebook and MySpace messages and phone conversations.  Throughout all of this, Watson made clear that nothing would happen unless the boy wanted it to happen, and his suggestions all related to meeting in private.  Feeling “very awkward” about the situation because he is not gay, the boy complained to his tennis coach, and school authorities contacted the police department, resulting in the police recording phone conversations between Watson and the boy in which Watson was very explicit in describing the sexual acts he hoped would take place when they met at Watson’s house.

Watson was indicted for misdemeanor solicitation and felony violation of his police officer oath, convicted by a jury that listened to the recording of the conversations, and sentenced to prison time and probation.  The Supreme Court took his appeal directly from the trial court.  Watson argued, as he maintained throughout the prosecution, that the solicitation statute violated his constitutional free speech rights.

The Supreme Court rejected Watson’s constitutional argument as to the validity of the statute.  Since 2000, when the statute was last upheld, the U.S. Supreme Court decided Lawrence v. Texas, extended 14th Amendment due process protection to private consensual gay sex between adults.  But Lawrence goes no further than the Georgia Supreme Court’s prior decision in Powell, and the court adhered to its previously stated view that the state may legitimately enforce the solicitation statute, so long as it is narrowly construed to apply only to solicitation of conduct that would violate the sodomy law, as it was itself narrowly construed in Powell.

That said, it was clear that Watson did not violate the statute as narrowly construed.  All of his solicitations were verbal, were not coercive, reiterated that it was up to the boy whether anything would happen, and referred to private places for meeting and having sex.  The age of consent for sex in Georgia is 16, so the boy was over the age of consent.  The court rejected the argument that the situation in which Watson made his initial solicitation took the case out of the consensual sphere.  “Though the repeated suggestion that [the boy] owed Watson some thing in exchange for the car ride home was certainly inappropriate, particularly as directed from a uniformed, on-duty police officer to a 17-year-old boy, we do not find that such conduct rises to the level of intimidation or coercion that would give rise to a finding of sexual contact by force.”  Although the boy testified that Watson’s repeated solicitations made him feel “very awkward,” he did not testify that he felt threatened or compelled to do anything against his will.  “Moreover, [the boy] actually declined Watson’s overture, after which the parties had no further contact until [the boy] contacted Watson while in the presence of law enforcement.  And the mere fact that Watson occupied a position of authority with respect to [the boy] is not sufficient to show ‘force’ in this context.”

Having conclude that the solicitation conviction must be reversed, the court also found that the oath conviction must fall, since it was premised on Watson having violated a Georgia law, which he had not.

Virginia Attorney General Goes to the Mat to Save Unconstitutional Sodomy Law

Posted on: April 5th, 2013 by Art Leonard No Comments

Virginia Attorney General Kenneth Cuccinelli has asked the 4th Circuit Court of Appeals to reconsider and overrule a decision by a three-judge panel of that court that held last month that Virginia’s sodomy law is facially unconstitutional.  Citing the dissenting opinion by one member of the panel ruling in MacDonald v. Moose, Cuccinelli emphasized that the case involving an adult man who solicited a teenage girl to have oral sex, and argued that Virginia should be allowed to prosecute such cases.

Ten years ago, the U.S. Supreme Court ruled in Lawrence v. Texas that the Texas Homosexual Conduct  Law, which made it a crime for gay people to have sex in that state, violated the 14th Amendment Due Process Clause.  In his opinion for the Court, Justice Anthony M. Kennedy, Jr., wrote that the Court’s 1986 decision, Bowers v. Hardwick, which had rejected a 14th Amendment challenge to the Georgia sodomy law, was “wrong” when it was decided and thus was overruled as part of the Lawrence decision.  The Georgia sodomy law, unlike the Texas law, prohibited all persons in Georgia from engaging in anal or oral sex, regardless of their gender or age.

One would have thought that as of 2003, when Lawrence was decided, all state sodomy laws would be considered unconstitutional and no longer enforceable, whether focused just on gay sex or more broadly on all oral or anal sex, and that state legislatures would get busy repealing them and replacing them, if desired, with laws that only criminalized conduct that was not constitutionally protected.  In the Lawrence decision, Justice Kennedy emphasized that the case before the Court did not involve sex with minors, prostitution, public acts, or situations where consent was lacking.  The Lawrence case involved two gay men arrested in one of their apartments under “fluke” circumstances, who were claimed by police officers to be engaging in sex.  (Subsequent investigation shows that the men probably were not engaging in sex.  See Dale Carpenter’s excellent and highly readable book about the case, “Flagrant Conduct,” published last year.)

But this thought, it turns out, was mistaken.  Many state legislatures have failed to remove the unconstitutional sodomy laws from their statute books, and one such is Virginia, despite unsuccessful legislative proposals to do so.  The Virginia sodomy law provides, “If any person carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty” of a felony.  The provision is similar to the Georgia sodomy law that was wrongly upheld in Bowers v. Hardwick, but subsequently declared by the Georgia Supreme Court to violate that state’s constitution.

Virginia state courts have taken the position that people can continue to be prosecuted under the Virginia sodomy law, and under a companion law that makes it a crime to solicit somebody to engage in a felony, so long as the conduct being prosecuted does not fall within the range of conduct that the Supreme Court found to be constitutionally protected in Lawrence v. Texas. 

In 2004, the state prosecuted William MacDonald, then 47, for soliciting oral sex from a 17-year-old girl.  The prosecutor charged MacDonald with a felony, he was found guilty, and the trial court sentenced him to ten years in prison (with nine years suspended) on this charge, plus twelve months for the misdemeanor offense of contributing to the delinquency of a minor.  MacDonald argued that he could not be prosecuted for soliciting a felony, because in light of Lawrence v. Texas, decided the year before, the Virginia sodomy law was unconstitutional.  Rejecting this argument, the state courts at every level took the position that because the girl was a minor (under age 18), Lawrence v. Texas did not apply.

After exhausting his state appeals, MacDonald filed a petition for habeas corpus in the U.S. District Court, arguing that his conviction violated his federal constitutional rights.  Under the federal statute governing petitions for habeas corpus, because the state courts had ruled on the merits of MacDonald’s federal constitutional claim, the federal court could only rule in MacDonald’s favor on one of two grounds: either that the state court’s ruling was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that the state court’s decision was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Judge Gerald Bruce Lee of the U.S. District Court for the Eastern District of Virginia ruled against MacDonald, denying the petition for habeas corpus, finding that the Virginia courts were not clearly wrong in their construction of the Lawrence decision.  But a panel of the U.S. Court of Appeals for the 4th Circuit, ruling on March 12, 2013, disagreed, voting 2-1 to grant MacDonald’s petition and declare that his conviction was unconstitutional.

The decision for the majority of the panel, by Circuit Judge Robert Bruce King, acknowledged that the Supreme Court had said in Lawrence that the case before it did not involve minors and various other factors.  But, he said, that failed to take account of everything that the Supreme Court did and said in its ruling.  “In Lawrence,” he wrote, “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.”   On its face, the Virginia statute continues to treat such conduct as criminal.  Judge King pointed out that in Lawrence the Supreme Court specifically granted review on the question whether Bowers v. Hardwick should be overruled.  And, as noted above, the Supreme Court answered that question in the affirmative, stating that “the rationale of Bowers does not withstand careful analysis. . .  Bowers was not correct when it was decided, and it is not correct today. . .  Bowers v. Hardwick should be and now is overruled.” 

If Bowers is overruled, that means that a sodomy law like the Georgia law challenged in Bowers is unconstitutional, said King.  “The Lawrence Court thus recognized that the facial due process challenge in Bowers was wrongly decided.  Because the invalid Georgia statute in Bowers is materially indistinguishable from the anti-sodomy provision being challenged here, the latter provision likewise does not survive the Lawrence decision.”  Bowers would be considered a “facial” due process challenge because it was not an appeal from a criminal prosecution, but rather an action filed in federal court for a declaratory judgment that the Georgia law was unconstitutional.  Michael Hardwick’s constitutional standing to bring the action was based on his arrest by Atlanta police for violating the statute, but that did not limit the scope of his lawsuit; although Justice Byron White’s opinion for the Bowers Court spoke as if the case was limited to homosexual conduct, it was not.

“True enough,” wrote King, “the Supreme Court implied in Lawrence that a state could, consistently with the Constitution, criminalize sodomy between an adult and a minor. . .  The Court’s ruminations concerning the circumstances under which a state might permissibly outlaw sodomy, however, no doubt contemplated deliberate action by the people’s representatives, rather than by the judiciary.”  In other words, if Virginia wants to outlaw adults soliciting minors to engage in constitutionally unprotected conduct, it can do so, but it must do so explicitly.  In fact, there is a Virginia statute making it a crime for an adult to engage in sex with a person under the age of 15, and another statute criminalizing incestuous sodomy involving both minors and adults, but those statutes clearly do not reach MacDonald’s conduct in this case.  King concluded, “The anti-sodomy provision itself, however, which served as the basis for MacDonald’s criminal solicitation conviction, cannot be squared with Lawrence without the sort of judicial intervention that the Supreme Court” has condemned as violating the separation of powers as between courts and legislatures.  In the majority’s view, the decision how much conduct to prohibit after Lawrence is a legislative decision, and the court should not presume to know where the legislature would draw its lines.

Circuit Judge Albert Diaz dissented, asserting that under the statute governing habeas corpus, the Virginia courts had not clearly violated Federal constitutional law by upholding MacDonald’s conviction, pointing out that lower federal courts and state courts have differing views over the scope of the Lawrence ruling.  “The majority ultimately may be proved right that the Virginia ‘anti-sodomy provision facially violates the Due Process Clause of the Fourteenth Amendment,'” he wrote.  “But because the matter is not beyond doubt after Lawrence, and because the district court was bound to give Virginia courts the benefit of that doubt on federal collateral review, I respectfully dissent.” 

Diaz contended that the majority misconstrued Lawrence as having invalidated the Texas sodomy law on its face, as opposed to invalidating at as applied to the Petitioners in that case, John Lawrence and Tyron Garner.  He pointed out that the language of the Lawrence opinion would support an interpretation that it was being treated by the Court as an “as applied” challenge to the law, which would mean that the Texas Homosexual Conduct Law could still be used to prosecute cases of sex involving minors, prostitution, public acts, or non-consensual situations.  In fact, the Texas legislature has refused to repeal or amend that law, and law enforcement authorities in Texas presumably continue to rely upon it to prosecute cases that don’t involve private consensual adult sex. 

“In any event,” wrote Diaz, “in order for MacDonald to prevail on his federal habeas petition, it must be clear that Lawrence facially invalidated all sodomy statutes.  Nowhere in the opinion does the Court do that.  The majority nevertheless infers the unconstitutionality of Virginia’s anti-sodomy provision from the fact that Lawrence expressly overruled Bowers.  Again, this is a bridge too far.  If it is difficult to discern from the Lawrence opinion whether it invalidated all sodomy statutes, it is even more of a stretch to do so by negative inference from the case it overturned.” 

Diaz also argued that the majority had misconstrued another Supreme Court case in its holding that the Virginia sodomy statute could not be judicially construed to prohibit  conduct outside of that protected under Lawrence.  “In order for the Virginia anti-sodomy provision to escape facial invalidity, it need not criminalize only conduct that falls outside constitutional protection,” he argued.  “Indeed, to suggest that a state must excise the constitutional defects of a statute by legislative revision before enforcing those portions that pass constitutional muster would turn every as-applied ruling into a facial invalidation,” he asserted.  Diaz contended that under the habeas corpus statute, a state court’s ruling on the constitutionality of a criminal statute could only be invalidated by the federal court if there is “a certainty, not just a likelihood, that a state court ruling ‘reached a decision contrary to clearly established federal law.’  Unlike the majority,” he concluded, “the district court here remained faithful to that distinction in declining to issue the writ.”

While it would appear to be a better use of the state’s resources for Cuccinelli to focus on getting the legislature to amend Virginia’s sodomy law so that it only applies to constitutionally-unprotected activity, Cuccinelli is seeking the Republican nomination for governor and, appealing to the core Republican constituency, it undoubtedly makes political sense for him to pose as a defender of public morality seeking to overturn a federal decision holding that sodomy law to be facially unconstitutional. 

It is possible that the full 4th Circuit bench, consisting of  fifteen judges, may agree with Judge Diaz’s dissent.  As to the politics of the thing, however, out of those 15 judges, six were appointed by President Obama, four by President Clinton, and the remainder by Republican presidents.  The 4th Circuit is one of the few federal circuits that President Obama has successfully converted to a majority appointed by Democratic presidents, as there were numerous vacancies on that circuit and a genuine emergency in handling appeals, which prompted the Senate to act relatively expeditiously in confirming his nominees as compared to the situation in some other circuits.  The majority of the MacDonald panel, Judge King and Circuit Judge Diana Gribbon Motz, were  appointed by President Clinton.  Dissenting Judge Diaz was appointed by President Obama.