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Fourth Circuit Court of Appeals declines to revisit decision striking down Virginia’s “crimes against nature” law

By Scottie Thomaston

In March, EqualityOnTrial covered the decision by the Fourth Circuit Court of Appeals that struck down Virginia’s “crimes against nature” law. The Virginia case involved an older man and an underage girl. But the Supreme Court struck down these so-called “sodomy laws” in Lawrence v. Texas as a violation of the liberty of gays and lesbians to form relationships. Many of these laws have remained on the books even after Lawrence.

After the Fourth Circuit struck down Virginia’s law, the state’s attorney general asked that court for en banc review with all the Fourth Circuit judges. He has argued that Lawrence did not say that sodomy laws couldn’t be enforced against underage sexual activity, only same-sex consensual activity.

On Monday the Fourth Circuit declined to rehear the case en banc. Virginia’s attorney general could petition the Supreme Court for a writ of certiorari to review the Fourth Circuit’s decision. Virginia’s legislature could also rewrite the law, ensuring that it only applies to conduct outside the reach of the Supreme Court’s Lawrence decision.

2 Comments April 10, 2013

Equality news round-up: LGBT families not included in immigration bill, and more

By Scottie Thomaston

– LGBT families will not be included in the “comprehensive” immigration reform bill.

– USAID has launched a partnership for the promotion of LGBT rights internationally.

– The marriage equality bill in Illinois has gained some bipartisan support.

– Senator Orrin Hatch (R-UT) has announced his support for civil unions for same-sex couples. Hatch still opposes same-sex marriage.

4 Comments April 9, 2013

Virginia’s attorney general asks full Fourth Circuit panel to uphold the state’s “crimes against nature” law

By Scottie Thomaston

Last month, the Fourth Circuit Court of Appeals struck down the state of Virginia’s “crimes against nature” law prohibiting same-sex intimacy. The United States Supreme Court ruled in 2003 in Lawrence v. Texas that such laws are unconstitutional and it struck down Texas’ “Homosexual Conduct” law. The Fourth Circuit said the Lawrence case is controlling precedent in the case brought in Virginia, though same-sex couples weren’t involved in the latter. In several states, especially in the South, these laws remain on the books (including in Texas) and occasionally gays and lesbians have been arrested for violation of these laws.

Now, Virginia’s Attorney General Ken Cuccinelli has filed a petition with the Fourth Circuit asking them to rehear the case en banc, with the full panel of all Fourth Circuit judges.

The Washington Blade reports that Virginia’s LGBT equality organizations are saying that a petition for rehearing en banc is the wrong course of action, and Virginia’s legislature should work on a rewrite of the bill to remove its unconstitutional applications:

Parrish said Equality Virginia wouldn’t object to a careful revision by the legislature of the state’s criminal code to allow for continued prosecution of offenses such as sex with minors.

“What we’re saying is we agree with the court ruling that, in this case, the law was used unconstitutionally. The best course of action would be for the General Assembly to address that, just like they did with the cohabitation law that they took off the books this year,” he said.

“We think that’s a better recourse than the Attorney General filing another appeal and diverting precious state resources on an issue that the General Assembly should address because the court made the correct ruling on March 12,” Parris said.

Virginia State Sen. Adam Ebbin (D-Alexandria), who’s gay, said he is looking into the issue and the possibility of introducing legislation to address it.

“I’m reviewing this and will consider introducing a bill next year to repeal the Virginia Crimes Against Nature law for consenting adults,” he told the Blade.

The issue appears to be that this specific case involved an underage girl, and the Lawrence decision arguably may not apply to underage sexual activity. The Fourth Circuit’s opinion held that Lawrence struck down the sodomy law at issue “on its face” rather than simply as applied to gays and lesbians. That would mean there’s no set of circumstances under which Virginia’s law could be applied constitutionally.

Even so, courts of appeals rarely grant en banc review of their judgments, and Virginia’s LGBT equality organizations believe it’s unlikely in this case that a rehearing will be granted. It’s not clear why Virginia’s attorney general would continue to press federal courts to uphold the law given Supreme Court precedent on point on the issue. And it’s even less clear since the state legislature can easily fix the constitutional deficiencies in the law and still use it to prosecute sexual activity with people who are underage.

Virginians are essentially split on the issue of marriage equality, 46% oppose it, 45% support it; that’s within the margin of error for the poll. Attitudes are shifting rapidly on issues involving LGBT rights, even in states like Virginia, so the attorney general’s attempt to uphold the state’s anti-gay law is a fight against a rapidly changing environment.

16 Comments April 3, 2013

National Organization for Marriage backs Rhode Island marriage equality referendum as “compromise”

By Scottie Thomaston

Yesterday, EqualityOnTrial reported that the marriage equality bill in Rhode Island is scheduled for its first Senate committee vote on March 21. There is also a “compromise bill” which would put the issue of marriage equality on the ballot for the voters to decide; the bill would also repeal the part of the state’s anti-discrimination law related to businesses that offer services related to a marriage ceremony. The bill was introduced by Senator Frank Ciccone.

As Pam’s House Blend noted, a ballot initiative on the issue of marriage equality is opposed by Rhode Islanders United for Marriage and Rhode Island’s Governor Lincoln Chafee.

The bill is backed by the National Organization for Marriage. Yesterday, they sent an email to supporters which said:

Most Rev. Thomas J. Tobin, bishop of the Diocese of Providence, had this to say about the newly proposed bill by Senator Frank Ciccone:

“We will continue to vigorously oppose efforts to redefine the institution of marriage in Rhode Island. Nevertheless, the legislation introduced by Senator Ciccone presents an eminently reasonable approach to this divisive issue. It advances the discussion in a positive and democratic way, while at the same time safeguarding the rights of all parties. The citizens of Rhode Island have a right to vote on this crucial issue.”

We stand alongside the bishop 100% in this statement.

NOM has backed civil unions in the past, in New Hampshire, but this is the first time they’ve announced support for a marriage equality referendum.

Since the amendment, if passed, would remove anti-discrimination protections for gays and lesbians, it would seem to pose some constitutional problems at the very least. The Supreme Court addressed the taking away of anti-discrimination protections in Romer v. Evans, and they’re considering the issue again now in the Prop 8 case. Laurel Ramseyer at Pam’s House Blend suggests that the bill is a “poison pill” bill and an attempt to persuade legislators who don’t want to take a position on marriage equality to back an amendment that voters would have to approve.

Also in NOM news, yesterday, the Associated Press ran a story about the family diversity of Supreme Court Justices. The story suggested that the family backgrounds of all the Justices are diverse: two Justices (Thomas and Chief Justice Roberts) raise adopted children, some have no children, and some were never married. Since the Court is going to hear cases related to marriage and families in less than two weeks, the report discussed what impact that diversity might have on the Justices’ views.

The chairman of the National Organization for Marriage, John Eastman, told the AP that Chief Justice Roberts’ decision to adopt children rather than to have biological children and raise them was the “second-best” option. He mentioned Roberts by name. Later, Chris Johnson at the Washington Blade (who is attending CPAC this week) asked NOM’s president Brian Brown about the comments, and Brown didn’t respond directly.

March 15, 2013

Illinois House Speaker suggests 12 more votes are needed to pass marriage equality bill

By Scottie Thomaston

The Illinois marriage equality bill is reportedly 12 votes short of passage in the House. The bill passed the Illinois state Senate and then passed a House committee. As EqualityOnTrial has previously reported, the bill faces an uphill battle in the House. Marriage equality advocates need 60 votes for the measure to pass and there was speculation all along that they were at least 17 votes short of that goal.

But House Speaker Michael Madigan has told reporters today that 12 additional votes are needed, and he said the effort is very difficult:

Illinois House Speaker Michael Madigan says passing a gay marriage bill out of the state House will be “very difficult.”

Madigan told reporters Wednesday that he backs the measure allowing same-sex couples to marry. The Senate approved it last month and it awaits a House floor vote. Lawmakers aren’t sure when they’ll call it.

Marriage equality advocates are saying the bill will eventually pass.

UPDATE 450PM ET: Rep. Greg Harris has said that the vote tally is “closer than” what the Speaker has suggested, but he didn’t say a number.

1 Comment March 13, 2013

Fourth Circuit Court of Appeals strikes down Virginia’s “crimes against nature” law

By Scottie Thomaston

Attribution: Wikipedia
United States Court of Appeals for the Fourth Circuit

Yesterday, the Fourth Circuit Court of Appeals issued its 2-1 decision in a case styled MacDonald v. Moose, striking down the state of Virginia’s “crimes against nature” law. Ten years ago in Lawrence v. Texas, the United States Supreme Court struck down laws like Virginia’s in for violating due process by criminalizing same-sex intimacy. But many states kept their laws on the books even after that decision, and some states continued to arrest gay men and lesbians long after the Supreme Court denied them the authority to do so.

This case involved a 47 year old man and an underage girl, however. He was convicted of “crimes against nature” in 2005. The courts below upheld his conviction, but the Fourth Circuit held that under Lawrence, the law is invalid:

In Lawrence, 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.
In these circumstances, a judicial reformation of the anti-sodomy provision to criminalize MacDonald’s conduct in this case, and to do so in harmony with Lawrence, requires a drastic action…[rewriting the statute]

The dissenting opinion suggests that the reach of Lawrence is “not beyond doubt” because it may only apply to private consensual activity:

In concluding that Lawrence v. Texas, 539 U.S. 558 (2003), invalidated sodomy laws only as applied to private consenting adults, the Virginia Court of Appeals did not reach a decision that “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.”

The Washington Blade has comments from the ACLU of Virginia:

“It is shameful that Virginia continued to prosecute individuals under the sodomy statute for ten years after the Supreme Court held that such laws are unconstitutional,” said Rebecca Glenberg in a statement on behalf of the ACLU of Virginia. The ACLU filed a friend-of-the-court brief supporting MacDonald’s appeal.

“This ruling brings an end to such prosecutions,” she said.

The Blade sought comments from Lambda Legal, who led the challenge in Lawrence v. Texas and had filed a brief in this case, but didn’t obtain a statement.

In two weeks, the Supreme Court hears two gay rights cases. The arguments will take place ten years to the day arguments were heard in Lawrence.

8 Comments March 13, 2013

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