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

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.

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