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

LGBT Legal Cases Right-wing

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.


  • 1. Bob  |  March 13, 2013 at 6:43 pm

    I’m not following the article. It says the man was with an underaged girl…that’s a crime. Isn’t sodomy with underaged persons illegal no matter what?

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