Virginia Sodomy Statute: Not Dead Yet!!

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.

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