4th Circuit Court of Appeals Strikes Down Virginia's Sodomy Law

Almost a decade ago in Lawrence v. Texas the U.S. Supreme Court struck down Texas' sodomy law and by extension Virginia's sodomy law at least in the context of consenting gay sex in the privacy of one's home.  Virginia, thanks to the Virginia GOP and its Christofascist masters at The Family Foundation ("TFF"), never repealed the Virginia sodomy law which continued to be used to by police and prosecutors to harass  anyone they sought to target on sexual crimes.  You see, for these folks (including whack job Virginia AG and would be Governor, Ken "Kookinelli" Cuccinelli), Virginia is above the rulings of the U. S. Supreme Court.  Now, based on the Lawrence v. Texas ruling, the 4th Circuit Court of Appeals has struck down the Virginia sodomy law.  No doubt there will be crying and gnashing of teeth among the bitter crones and repressed closet cases at TFF and in the Virginia GOP.  The Virginian Pilot has coverage.  Here are highlights:

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 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.

While unrelated to the ruling, the Christofascists obsession with sex - especially gay sex - was on display in Minnesota where  anti-gay forces speaking before that state's House Civil Law Committee offered a shockingly inaccurate testimony in an attempt to thwart the approval of same-sex marriage in the state.