RICHMOND — A federal appeals court on Tuesday struck down a Virginia anti-sodomy law that remains on the books a decade after a similar Texas statute was invalidated by the U.S. Supreme Court.
In a 2-1 ruling, a panel of the 4th U.S. Circuit Court of Appeals declared that Virginia’s law against oral and anal sex violates the U.S. Constitution’s due process clause.
Virginia’s so-called “crimes against nature” law served as the basis for William Scott MacDonald’s felony conviction. A judge in Colonial Heights convicted MacDonald, then 47, of criminal solicitation for allegedly demanding oral sex from a 17-year-old girl. That was in 2005, two years after the landmark Lawrence v. Texas decision effectively struck down anti-sodomy laws in that state and several others.
“It is shameful that Virginia continued to prosecute individuals under the sodomy statute for 10 years after the Supreme Court held that such laws are unconstitutional,” said Rebecca Glenberg of the ACLU of Virginia, which filed a friend-of-the-court brief urging the court to invalidate the law. “This ruling should bring an end to such prosecutions.”
MacDonald’s attorney, Benjamin E. Rosenberg, did not immediately respond to a message seeking comment.
The Virginia attorney general’s office is reviewing the ruling and considering its options, spokesman Brian Gottstein said in an email.
Virginia’s criminal solicitation law states that it’s a felony for any adult to order a person under age 18 to commit a felony. MacDonald claimed his conviction for that offense was improper because the underlying felony was based on an unconstitutional law.
McDonald was convicted, however, on the theory that the Lawrence case did not apply to sodomy involving minors. The federal appeals court rejected that interpretation and reversed MacDonald’s conviction, saying the Supreme Court did not expressly carve out an exception for minors but left open the possibility of state legislatures doing so.
“True enough, the Supreme Court implied in Lawrence that a state could, consistently with the Constitution, criminalize sodomy between an adult and a minor,” Judge Robert King wrote in the majority opinion. “The court’s rumination’s 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.”
The appeals court noted that Virginia does have a law prohibiting an adult from soliciting sodomy from anyone under age 15, but MacDonald could not be charged with violating that statute because his accuser was 17.
“Thus, although the Virginia General Assembly might be entitled to enact a statute specifically outlawing sodomy between an adult and an older minor, it has not seen fit to do so,” Judge King wrote.
Judge Diana Gribbon Motz joined in the majority opinion.
In a dissenting opinion, Judge Albert Diaz wrote that federal courts were required to give more deference to the state courts’ interpretation of the Virginia statute.