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Posts Tagged ‘Virginia sodomy law’

Virginia Sodomy Statute: Not Dead Yet!!

Posted on: February 11th, 2014 by Art Leonard 1 Comment

Last year, the U.S. Court of Appeals for the 4th Circuit, based in Richmond, ruled that the Virginia sodomy statute is facially unconstitutional under the U.S. Supreme Court’s 2003 decision, Lawrence v. Texas, and granted a writ of habeas corpus vacating the criminal conviction of a Virginia man who had been prosecuted for soliciting oral sex from a teenage girl. Virginia authorities had taken the position that because the Supreme Court’s ruling in Lawrence v. Texas did not involve intergenerational sex, the state could still prosecute it. But the 4th Circuit took the position in MacDonald v. Moose, 710 F.3d 154, that the very broad sodomy statute, which on its face applied to a wide range of constitutionally protected conduct, could not stand. The state petitioned the U.S. Supreme Court for review, but that Court refused to take up the case, making the 4th Circuit’s decision final.

But that doesn’t bother the Virginia Court of Appeals, which has ruled twice in recent weeks that the 4th Circuit’s decision is not binding on the Virginia courts because the U.S. Supreme Court did not affirm it on the merits but merely denied review. In Saunders v. Commonwealth, 2014 Va. App. LEXIS 23, 2014 WL 392913 (Feb. 4, 2014), and Toghill v. Commonwealth, 2014 Va. App. LEXIS 42 (Feb. 11, 2014), the state appeals court said that it was bound by an earlier Virginia Supreme Court decision that had rejected a constitutional challenge to the sodomy law. Ruling in 2007 in McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918, the Virginia Supreme Court took a narrow view of Lawrence v. Texas, finding that Lawrence involved consensual adult conduct and that the Lawrence court had specifically disclaimed ruling on the issue of sex between adults and minors. According to the Virginia Supreme Court, this meant that the state’s sodomy law could still be applied to conduct that was not expressly protected under Lawrence v. Texas.

Although the 4th Circuit Court of Appeals disagreed with that ruling, the Virginia Court of Appeals, quoting an earlier case, commented, “Only decisions of the United States Supreme Court can supersede binding precedent from the Virginia Supreme Court.” Moreover, wrote Judge Glen A. Huff in the Saunders case, again quoting the earlier decision, “though state courts may for policy reasons follow the decisions of the Court of Appeals whose circuit includes their state, they are not obliged to do so.” “Thus,” he continued, “the Fourth Circuit’s holding in MacDonald is merely persuasive and does not bind this Court. This case involved actions between an adult and a minor; thus, it is removed from the ruling in Lawrence.” The court of appeals held that because the Virginia Supreme Court had upheld the conviction in the McDonald case, the court of appeals was bound to follow that ruling.

Had the U.S. Supreme Court granted review in MacDonald v. Moose and affirmed the 4th Circuit’s ruling that Virginia’s sodomy law was unconstitutional, that result would be binding on Virginia courts. The question for Virginia now is whether the legislature will finally revise the sodomy law so that it clearly applies only to conduct that is not constitutionally protected, and removes from the statute books the implication that adult consensual gay sex is a crime. Although such constitutionally protected conduct may not be prosecuted, so long as the overly-broad sodomy law remains on the books, it is possible – indeed likely – that law enforcement authorities will continue to arrest people. This was a continuing problem in New York, where the Court of Appeals declared the sodomy law unconstitutional in 1980 but the legislature did not revise the law for more than two decades, during which police officers continued to make arrests. Now that the governorship and one house of the legislature are in Democratic hands, perhaps some reforms can take place.

Anybody who is doing time in a Virginia prison on a sodomy conviction might well file a petition for habeas corpus in the federal district court, which would be bound by the 4th Circuit’s ruling to grant the writ and order their release. Perhaps this would give the Virginia legislature some incentive to revise their unconstitutional law.

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.