Category Archives: Lawrence v Texas

10 years later, another Supreme wait

The U.S. Supreme Court (Washington Blade file photo by Michael Key)

Expectations are high as the wait continues for two decisions expected in June on marriage cases before the U.S. Supreme Court, just as they were 10 years ago when gay rights supporters awaited what amounted to landmark rulings in two other cases.

In 2003, two cases reshaped the landscape for gay rights: the U.S. Supreme Court decision in Lawrence v. Texas, which struck down state sodomy laws throughout the country, and the Massachusetts Supreme Court decision in Goodridge v. Department of Public Health, which for the first time led to the legalization of marriage equality in a U.S. jurisdiction.

The two cases currently before the court — Hollingsworth v. Perry, which aims to strike down California’s Proposition 8, and United States v. Windsor, which is challenging the Defense of Marriage Act — are different in many respects from the cases 10 years ago. Lawrence was related to sodomy laws and Goodridge was a state lawsuit that resulted in a change only in Massachusetts. Still, they’re similar in terms of their potential significance.

The two attorneys who made arguments before the courts in the decades-old lawsuits — in the Goodridge case, Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, and, in the Lawrence case, Paul Smith, a partner at Jenner & Block — acknowledged the magnitude of the cases both then and now, but said it’s hard to compare the significance of the older ones to the newer ones.

Smith said we won’t know the significance of the DOMA and Prop 8 cases until the Supreme Court rules on them, but touted the Lawrence decision striking down sodomy bans across the country as significant in any event.

“It provided the foundation for all the progress that has been made on marriage and other forms of discrimination over the past 10 years,” Smith said. “It did that by establishing that our relationships are just as important and valuable as different-sex relationships and by saying that the government can’t use morality as a justification for interfering with individual choices about who to love and how. With those principles in place it’s very hard for anyone to come up with a legitimate and persuasive justification for discrimination based on sexual orientation.”

Similarly, Bonauto said “it’s not really easy” to compare the significance of the Goodridge case to the Perry and Windsor lawsuits, recalling the different cultural climate 10 years ago in which the Massachusetts case was argued.

“In 2003, these waters were largely uncharted,” Bonauto said. “There were zero marriage states, a civil union system in Vermont, and 36 states with discriminatory statutes and four states with amendments. But then, as now, we were right; right on the constitutional principles and the utter absence of legal justifications for this discrimination.”

Those court rulings — in particular the Goodridge decision because it was the first successful case for full marriage equality in the United States — paved the way for 11 more states to approve same-sex marriage over the course of 10 years, including the legalization of marriage equality in Minnesota just this week.

Just as observers are parsing statements from justices now in an attempt to determine what the court may rule on Prop 8 and DOMA, followers of the court cases a decade ago were also trying to predict the future based on what was said during oral arguments.

In Lawrence, Smith said moderate justices at the time — Associate Justice Anthony Kennedy and then-Associate Justice Sandra Day O’Connor — were “uncharacteristically quiet,” making it difficult to predict how the court would rule.

“But we took hope from the fact that they didn’t say anything negative,” Smith added. “We were relatively optimistic that the court would strike down the sodomy laws once the court decided to take the case.”

For Goodridge, Bonauto said the wait was different from now in two regards: first because same-sex marriage wasn’t legalized anywhere in the country at the time, and second because there was no set timeline for when the Massachusetts Supreme Court had to make a decision.

“We thought and hoped we were right on the timing,” Bonauto said. “There were a lot of nerves and uncertainty while we waited. The fact that we didn’t know when the decision would come — no clue at all — added to the nerves and fueled the rumor factory. In the end, the decision turned out to be beautifully written and world-changing.”

In the present, many observers believe that the Supreme Court will issue a decision that will strike down DOMA on its merits — either based on equal protection or federalism grounds — although issues of standing were examined.

For Prop 8, much attention has been given to justices’ interest in the standing of Prop 8 proponents to defend the measure in court. A determination that they lack standing would leave in place a lower court ruling and likely invalidate the ban on same-sex marriage in California.

The standing issues before the Supreme Court, as Bonauto noted, also means the wait for Goodrige was different because the Massachusetts Supreme Court couldn’t rule on this basis.

“There were no outs,” Bonauto said. “They had to decide whether denying marriage to gay couples violates the Constitution of the Commonwealth or not. And I was asked very specifically in oral arguments about Vermont civil unions and a remedy that would provide those protections, and I said, ‘That was not what the plaintiffs were seeking; they were seeking access to marriage itself.’”

Notably, the oral arguments in Lawrence v. Texas took place on March 26, 2003, which is exactly 10 years to the day that oral arguments took place in the Prop 8 case on March 26, 2013. A ruling was issued in the Lawrence case on June 26, 2003 just as a ruling is expected in the Prop 8 and DOMA cases in June 2013.

In the Goodridge case, oral arguments took place before the Massachusetts Supreme Court on March 3, 2003, but a decision wasn’t rendered until Nov. 18, 2003.

Mary Bonauto, gay news, Washington Blade

Mary Bonauto (Washington Blade photo by Michael Key)

It remains to be seen whether the wording of rulings from the Supreme Court will have the same power as the language that justices handed down a decade ago. The 4-3 ruling in the Goodridge case affirmed that same-sex couples had the right to marry with never before seen language.

“The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry,” the decision states. “We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals.”

In the Lawrence case, the 6-3 opinion written by Associate Justice Anthony Kennedy determined that the framers intended language in the U.S. Constitution to be reinterpreted by later generations in accordance with their vision of liberty.

“They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Kennedy wrote “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Also unknown is how the public might react if the Supreme Court issues affirmative rulings for marriage equality in the Prop 8 and DOMA cases.

In 2003, the court ruling in Massachusetts — combined with then-San Francisco Mayor Gavin Newsom’s decision to issue marriage licenses to gay couples — sparked a national backlash that led in the next year to 11 states passing constitutional amendments banning same-sex marriage. Former President George W. Bush ran a successful re-election campaign in which he advocated for passage of a Federal Marriage Amendment.

But Bonauto was skeptical that the legalization of same-sex marriage led to the passage of state constitutional amendments and Bush’s re-election — saying the religious right wanted to enact the amendments anyway and analysis shows the marriage issue wasn’t as much a boon to Bush as it may seem on its face.

“By the time we had filed Goodridge, there were already 36 state statutes and four amendments,” Bonauto said. “So, for a lot of these states, they didn’t have anything else to do but to pass an amendment because they already had statutes barring marriage. So I really view this as political opportunism both with elected officials and also the organized right-wing. It was trying to cut us off and change the facts on the ground, so that they could isolate this debate and isolate this issue in certain states.”

Given the growing acceptance of marriage equality — one widely noted recent poll shows it enjoys support from 58 percent of the American public, compared to 30 percent support in 2003 — the negative reaction to any pro-gay rulings will likely be more restrained.

In the event the Supreme Court in June renders similarly favorable decisions in support of rights for gay couples, Bonauto predicted some would speak out in opposition, but the reaction generally would be favorable.

“There are going to be people who are going to say things, and some of them have echo chambers and bully pulpits and their blogs,” Bonauto said. “I don’t think we should equate that to a backlash. I just think that is what public discourse is like in 2013. I really believe that the overwhelming majority of Americans are at a point where they accept and embrace the freedom to marry for same-sex couples.”

Sodomy laws remain on books in 17 states, including Md. and Va.

Some gay rights attorneys, including Paul Smith, who successfully argued the Lawrence case before the Supreme Court, have expressed concern that prosecutors and lower court judges are misinterpreting language in the Lawrence decision. (Washington Blade photo by Michael Key)

Laws that make it a crime for consenting adults to engage in sodomy remain on the books in 17 states and continue to be enforced in several of those states 10 years after the U.S. Supreme Court declared such laws unconstitutional.

Last week, the Montana Legislature gave final approval of a bill to repeal that state’s sodomy law. (A spokesperson for the state’s Democratic governor, Steve Bullock, said Bullock was scheduled to sign the bill on Thursday, which would lower the number of states with sodomy laws from 18 to 17.)

According to LGBT activists and gay rights attorneys, most of the cases in which police and prosecutors enforce sodomy or “crime against nature” statutes involve marginalized groups such as transgender sex workers or gay men arrested by undercover police officers for engaging in or soliciting sex in parks or other public places.

But the author of a comprehensive report on the continued enforcement of state sodomy laws released in 2011 by the national LGBT advocacy group Equality Matters said many of the cases involve arrests of men who merely seek to invite another willing male partner to their home for a sexual encounter where prostitution is not involved.

Equality Matters researcher Carlos Maza, author of the report “State Sodomy Laws Continue to Target LGBT Americans,” told the Blade that although sodomy laws apply to straights as well as LGBT people in all but four of the states that have them, LGBT people are targeted far more often than straights.

“LGBT people in Michigan continue to be charged with crimes for public speech, in which they let another person know they are interested in private, unpaid sex with another adult,” the report quotes Michigan gay rights attorney Rudy Serra as saying in the Michigan publication Pride Source.

“Bag-A-Fag (undercover decoy cop) operations, where police officers pretend to be gay men cruising for unpaid, consensual sex continue in Michigan,” the report quotes Serra as saying. “LGBT people are still at risk of spending 15 years in state prison for acts that are perfectly legal in most other states.”

Serra told the Blade in an interview that someone convicted under Michigan’s sodomy law, called the Abominable and Detestable Crime Against Nature statute, and a separate “Gross Indecency” law, also must register with the state as sex offenders.

He said despite the fact that the Lawrence v. Texas decision renders these laws unconstitutional, the Michigan State Bar, which every lawyer is required to join, has retained written instructions about how juries should deliberate over cases in which a person is charged and brought to trial under the sodomy and Gross Indecency laws.

Gary Buseck, legal director of the New England-based litigation group Gay & Lesbian Advocates & Defenders, said he is not aware of any cases in which the Massachusetts sodomy law has been enforced against people for private, consensual, non-commercial sex since the 2003 Lawrence decision.

But he said the Massachusetts law continues to be used, although rarely, by police against gays in cases of “public” sex.

“We have always understood that in straight ‘lovers’ lanes,’ the police traditionally just shoo couples away and that’s that,” he told the Blade. “With gay men there has traditionally been the ebb and flow of sting efforts or entrapment efforts or enhanced enforcement efforts at what become identified as gay cruising areas.”

Buseck added, “Occasionally, men will still be charged with a felony sodomy [in Massachusetts]. But we have not been aware in recent years of any district attorneys who will go forward with such a case.”

In at least one case in North Carolina in 2008, police arrested two gay men under that state’s sodomy statute for allegedly engaging in consenting sex in the privacy of one of their homes. The case outraged gay activists in the state, who noted it was similar to the Lawrence v. Texas case in which the Supreme Court supposedly overturned state sodomy laws.

A prosecutor eventually dropped the charges against the men after determining that the arrest by officers of the Raleigh Police Department violated the Lawrence v. Texas ruling.

The Raleigh News and Observer and other news media outlets reported that police got involved in the case after the men became involved in an incident of domestic violence and one of them called police.

In the course of a police investigation, one of the men said the other sexually assaulted him, according to media accounts. But a police official told media outlets the incident appeared to be “a case of a consensual act that may have gotten out of hand.” Instead of charging one of the men with sexual assault, police charged both men with violating the sodomy statute.

The News and Observer reported at the time that the man who claimed he was sexually assaulted said he was grateful that the sodomy charge was dropped but said he had been humiliated over being accused of a crime listed as a Class 1 felony — sodomy — punishable by up to two years in prison.

“The reality is the process of being arrested for these laws is extremely damaging to the people who get caught up in the system,” Maza told the Blade. “And the only real solution is to have those laws taken off the books.”

Added Maza, “Unfortunately a lot of people don’t have the motivation to get that done when things like marriage and employment discrimination are being discussed in state legislatures.”

Maza and gay rights attorneys familiar with Maryland said they were not aware of Maryland’s sodomy law being enforced since the late 1990s. [See separate Blade story on Maryland’s sodomy law.]

The Virginia sodomy law, which also remains on the books, has been enforced against gays and straights charged with offenses related to public sex or sex with minors, attorneys familiar with the Virginia Crimes Against Nature law have said. A federal appeals court ruled last month that the Virginia statute was “facially” or completely unconstitutional and could no longer be enforced under any circumstances.

The Equality Matters report notes, however, that police and prosecutors in some states, including Michigan and Texas, have continued to enforce sodomy laws despite the fact that state courts have joined the U.S. Supreme Court in invalidating those laws.

“Even in states where these statutes are never enforced, anti-LGBT animosity is fanned by government recognition that LGBT people are viewed as criminals in the eyes of the law,” Maza states in the Equality Matters report. “This animosity helps create the conditions for anti-LGBT hate crimes as well as disproportionate rates of suicide among non-heterosexual youth,” the report says.

Lawrence loophole?

Some gay rights attorneys, including Washington, D.C. attorney Paul Smith, who successfully argued the Lawrence case before the Supreme Court, have expressed concern that prosecutors and lower court judges are misinterpreting language in the Lawrence decision.

According to these attorneys, certain prosecutors and judges are claiming a passage in the Lawrence decision penned by Justice Anthony Kennedy, who wrote the majority opinion in the case, provides a broad loophole that gives them authority to continue enforcing their state sodomy laws in cases involving public sex, sex with minors, or prostitution-related sex.

The passage in question states, “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”

Virginia Attorney General Ken Cuccinelli, who defended Virginia’s sodomy law against a court challenge this year, has cited the so-called loophole in his arguments urging the Fourth Circuit U.S. Court of Appeals in Richmond to uphold the statute. The court instead declared the law unconstitutional based on the Lawrence decision and refused Cuccinelli’s request that the full 15-judge court reconsider the decision handed down by a three-judge panel.

Cuccinelli has yet to disclose whether he plans to ask the U.S. Supreme Court to consider the case as a final appeal.

Gay rights attorneys say that Kennedy’s passage appearing to limit the scope of the Lawrence decision to non-commercial, consenting sex among adults in private appears reasonable on its face. Smith, for example, told the Blade he and the other attorneys who helped him prepare the Lawrence case before the high court did not call for a ruling that went beyond invalidating state sodomy laws for private, consenting, non-commercial sex between adults.

But gay rights attorneys say they do not think Justice Kennedy and the justices who ruled with him intended that gays be singled out for harsher treatment than straights for identical infractions through the enforcement of state sodomy laws.

In the Equality Matters report, Maza points out that prosecutors in some states, especially Louisiana, have used sodomy laws to push for harsher penalties against LGBT suspects using sodomy laws than they would for heterosexual suspects accused of engaging in the exact same behavior, such as prostitution or public sex.

In Louisiana, the report says, people accused of engaging in prostitution could be charged either under the state’s anti-prostitution law or under the solicitation provision of the Louisiana “Crime Against Nature” law, which criminalizes oral and anal sex.

The Crime Against Nature statute carries a longer prison term than the prostitution law, the report says, and unlike the prostitution statute, people convicted under the Crime Against Nature law must register as sex offenders, even if the sex is between consenting adults.

Activists say some of Louisiana’s transgender women and young gay men who have been rejected by their families for being gay or transgender engage in prostitution as a means of survival. Activists say members of these two groups have been among those most frequently charged under the Crime Against Nature law in Louisiana.

The Center for Constitutional Rights, which has provided legal assistance to people charged under Louisiana’s crime against nature law, has criticized law enforcement officials for seeking to enforce the law up until last year, when a state court ruled it could no longer be enforced based on the Lawrence decision.

“[T]he only reason our clients are registered sex offenders is that they were convicted under the provisions of a 200-year-old statute that condemns non-procreative sex acts and sex acts traditionally associated with homosexuality, solely on grounds of moral disapproval,” the group said in a statement.

The Equality Matters report says one of the most dramatic examples of how a state sodomy law can inflict a harsher penalty on LGBT people surfaced in Kansas in 2004. In a case known as State v. Limon, a Kansas state appellate court cited the so-called Lawrence loophole or “exemption” for minors in a ruling upholding a trial court conviction of an 18-year-old male charged with engaging in consensual oral sex with a 14-year-old boy. Both had been living in the same residential school facility for mentally challenged youth.

If the 14-year-old had been a girl rather than a boy, the 18-year-old would have been charged under a Kansas “Romeo & Juliet” law. That law calls for a young adult charged with having sex with a minor whose age is within four years of the young adult to receive a far more lenient sentence under the state’s statutory rape law if the sex is consensual. The 18-year-old, who was charged and convicted under the Kansas criminal sodomy law, was sentenced to 17 years in prison.

His conviction was later overturned by the U.S. Supreme Court on grounds that the Kansas sodomy law was unconstitutional based on the Lawrence decision.

“The reality is that, in many states, enforcement occurs sporadically, typically at the discretion of particular police officers,” said Maza in discussing the rationale for enforcing sodomy laws.

“Even though the laws are clearly unconstitutional, their existence in the legal code gives officers the cover they need to arrest and prosecute gay people,” he said. “Sometimes officers simply choose to ignore Lawrence altogether in an attempt to enforce state sodomy laws as if the decision never occurred.”

Although the majority of sodomy cases are eventually dismissed, Maza said, the fact that people are still charged under the laws, and few people until recently were aware of this taking place, demonstrates that LGBT organizations should take a far more aggressive approach in addressing the issue.

“Only fully repealing these measures ensures that LGBT Americans will be protected from arbitrary and discriminatory legal treatment,” Maza said.

Following is a list of the states that had sodomy laws on the books as of early this week.

Montana’s governor was expected to sign a bill this week to repeal that state’s sodomy law, making Montana the first state to repeal its sodomy statute through legislation in many years.

An asterisk indicates the state sodomy law only applies to gay sex.

Alabama
Florida
Georgia
Idaho
Kansas*
Louisiana
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Montana*
North Carolina
Oklahoma*
South Carolina
Texas*
Utah
Virginia

Cuccinelli denied sodomy ruling rehearing

Gay News, Washington Blade, Gay Virginia, Ken Cuccinelli

Virginia Attorney General Kenneth Cuccinelli hoped to challenge a ruling that overturned the state’s sodomy law. (Washington Blade file photo by Michael Key)

The Fourth Circuit U.S. Court of Appeals in Richmond issued an order on Monday denying a petition by Virginia Attorney General Ken Cuccinelli asking the full 15-judge court to reconsider a decision by a three-judge panel last month that overturned the state’s sodomy law.

In an action that surprised some court observers, the order says none of the court’s judges requested a poll among themselves to determine which, if any of them, favored Cuccinelli’s request for an en banc rehearing of the sodomy case by the court’s 15 active judges and one senior judge.

Under court rules, if no judge calls for a poll or vote on the issue, the petition for a rehearing is automatically denied in what, in effect, becomes a unanimous decision.

Among the judges that chose not to approve a rehearing was Judge Albert Diaz, who wrote the dissent in the three-judge panel’s 2-1 ruling declaring Virginia’s “Crimes Against Nature” statute unconstitutional. The statute classifies sodomy between consenting adults, gay or straight, as a crime.

“It’s a pretty resounding rejection,” said Claire Gastanaga, executive director of the ACLU of Virginia, which filed a friend of the court brief urging the three-judge panel to overturn the state sodomy law. “There really wasn’t any interest in doing this at all by anybody.”

Caroline Gibson, Cuccinelli’s deputy communications director, didn’t respond to a question from the Blade about whether Cuccinelli plans to petition the U.S. Supreme Court to take the case, which would be the last remaining step to challenge the appeals court ruling overturning the sodomy law.

“We would hope that they wouldn’t,” Gastanaga said. “We would hope that they would understand what they need to do is work to get this law off the books. But I wouldn’t be surprised if they filed a petition for cert.”

Gastanaga was referring to the process for taking a case before the Supreme Court through the filing of a petition for a Writ of Certiorari. At least four of the nine justices on the high court must approve certiorari or “cert” in order for the court to accept a case for consideration on the merits.

The March 12 ruling by the three-judge panel of the Fourth Circuit appeals court overturned a lower court decision upholding the conviction of a 47-year-old man charged in 2004 with soliciting a 17-year-old woman to engage in oral sex on grounds that the sodomy statute is unconstitutional. No sexual encounter took place, according to court records.

Cuccinelli’s office argued in its 21-page petition for a rehearing that the Supreme Court’s 2003 Lawrence v. Texas decision overturning state sodomy laws didn’t apply to cases involving minors. However, Fourth Circuit Court of Appeals Judge Robert King, who wrote the majority opinion, said the Lawrence decision rendered the Virginia sodomy statute “facially” or completely unconstitutional.

“As we stated last week, this case has nothing to do with sexual orientation or private sexual acts between consenting adults,” Gibson told the Blade in an email on Tuesday. “It’s about using current law to protect a 17-year-old girl from a 47-year-old sexual predator. The attorney general is committed to protecting Virginia’s children from predators who attempt to exploit them and rob them of their childhood.”

Gibson said Cuccinelli agreed with the dissenting judge that the defendant in the case wasn’t entitled to relief from the three-judge panel of the fourth circuit appeals court and the full court should have been given an opportunity to decide the matter.

Judge King stated in the majority opinion that other laws could be used to prosecute an adult for engaging in sex with a minor and that the state legislature would likely have authority under the Lawrence decision to pass a new law specifically outlawing sodomy between an adult and a minor.

Virginia State Sen. Adam Ebbin (D-Alexandria), who’s gay, has said he is considering introducing a bill next year to repeal the Crimes Against Nature law for consenting adults.

Cuccinelli challenges Va. sodomy ruling

Virginia Attorney General Kenneth Cuccinelli is challenging a ruling that overturned the state’s sodomy law. (Washington Blade file photo by Michael Key)

Virginia Attorney General Kenneth Cuccinelli has filed a petition with the 4th Circuit U.S. Court of Appeals in Richmond asking the full 15-judge court to reconsider a decision by a three-judge panel last month that overturned the state’s sodomy law.

The three-judge panel ruled 2-1 on March 12 that a section of Virginia’s “Crimes Against Nature” statute that outlaws sodomy between consenting adults, gay or straight, is unconstitutional based on a U.S. Supreme Court decision in 2003 known as Lawrence v. Texas.

A clerk with the 4th Circuit appeals court said a representative of the Virginia Attorney General’s office filed the petition on Cuccinelli’s behalf on March 26. The petition requests what is known as an en banc hearing before the full 15 judges to reconsider the earlier ruling by the three-judge panel.

“We certainly hope they won’t,” said Claire Gastanaga, executive director of the ACLU of Virginia, which filed a friend of the court brief urging the three-judge panel to overturn the state sodomy law.

“We think it’s a situation in which everybody agrees that the statute is unconstitutional,” Gastanaga told the Blade.

Greg Nevins, an attorney with the LGBT litigation group Lambda Legal Defense and Education Fund, which joined the ACLU in filing the friend of the court brief calling for overturning the Virginia sodomy law, said requests for en banc hearings are turned down most of the time.

He quoted a federal appeals court rule as stating, “Although petitions for rehearing are filed in a great many cases, few are granted.”

Caroline Gibson, a spokesperson for Cuccinelli, told the Blade in an email that Cuccinelli believes the dissenting judge on the three-judge panel was correct in stating the Lawrence decision applies only to sex between consenting adults in private and doesn’t apply to cases involving a minor. The case in which the three-judge panel of the 4th Circuit Court of Appeals overturned the Virginia sodomy law involved a man charged with soliciting oral sex from a 17-year-old woman.

“We believe the panel decision was erroneous, and that the dissent correctly concludes that the petitioner was not entitled to federal habeas corpus relief, Gibson said, referring to the court’s decision to overturn the man’s conviction under the sodomy law. “So the full court should have the opportunity to decide this matter,” she said.

“Like most people, we think the court made the right decision,” said James Parrish, executive director of the LGBT advocacy group Equality Virginia.

“We think what needs to happen is the General Assembly needs to remove the current sodomy law that has been declared unconstitutional,” he said.

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 March 12 ruling of the appeals court’s three-judge panel overturned a lower court decision upholding the conviction of a 37-year-old man charged in 2005 with soliciting a 17-year-old woman to engage in oral sex. No sexual encounter took place, records show.

The Attorney General’s office argued that the Supreme Court’s Lawrence decision didn’t apply to cases involving minors. But 4th Circuit Appeals Court Judge Robert King, who wrote the majority opinion, said the Lawrence decision rendered the Virginia sodomy statue “facially” or completely unconstitutional.

He stated other laws could be used to prosecute an adult for engaging in sex with a minor and that the Virginia General Assembly would likely have authority under the Lawrence decision to pass a new law specifically outlawing sodomy between an adult and a minor.

Court strikes down Va. sodomy law

Supreme Court, gay news, Washington Blade

The U.S. Supreme Court struck down sodomy laws as unconstitutional back in 2003, but such laws remain on the books in some states. (Washington Blade file photo by Michael Key)

A federal appeals court handed down a 2-1 decision on Tuesday striking down a section of Virginia’s “Crimes Against Nature” statute that outlaws sodomy between consenting adults, gay or straight.

The 4th U.S. Circuit Court of Appeals issued its ruling in a case in which a 37-year-old married man was charged in 2005 with soliciting another woman, who was 17, to engage in oral sex.

William Scott MacDonald, who lived at the time in the City of Colonial Heights, was convicted of a misdemeanor offense of contributing to the delinquency of a minor and of a felony offense of solicitation for sodomy.

The 4th Circuit federal appeals panel overturned his conviction by a trial judge on the solicitation charge and reversed two lower court rulings that upheld the trial court decision – all on grounds that the 2003 U.S. Supreme Court ruling of Lawrence v. Texas rendered the Virginia anti-sodomy law unconstitutional.

“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 New York-based gay litigation group Lambda Legal Defense and Education Fund also submitted a friend-of-the-court, or amicus, brief on MacDonald’s behalf, according to a notation on the federal appeals court’s 30-page opinion.

A spokesperson for Lambda couldn’t immediately be reached for comment.

“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,” said the majority opinion in Tuesday’s appeals court ruling.

Judge Robert King, who wrote the majority opinion, and Judge Diana Gribbon Motz, who joined King in the ruling, rejected arguments by the Virginia Attorney General’s office and rulings by two lower courts that the Lawrence decision didn’t apply to cases involving minors.

King noted in his opinion that current Virginia law, under the parameters of the Lawrence decision, can only prohibit an adult from soliciting sodomy from someone under the age of 15, which is the legal age of consent in the state.

“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,” he wrote in his opinion.

Brian Gottstein, a spokesperson for the Virginia Attorney General’s office, told the Richmond Times Dispatch the office “was reviewing the decision and will consider our options.”

The Times Dispatch reported that MacDonald and his wife have since moved to North Carolina. The paper reported that the wife, Carolynn MacDonald, said her husband is a combat veteran suffering from post-traumatic stress disorder.

“He’s enjoying today, but having a difficult time with it,” the Times Dispatch quoted her as saying.

In its summary of the background of the case, the 4th Circuit Appeals Court opinion states that it was MacDonald who triggered an investigation that led to his arrest. It cites trial court records as showing the 17-year-old girl turned down MacDonald’s request that she perform oral sex on him and appeared to let the matter drop.

But according to court records, MacDonald later called the police to report that the 17-year-old solicited him for sex. In an official police report, he told a detective that the 17-year-old “forcibly removed his penis from his pants and performed oral sex against his will.”

After interviewing the 17-year-old, the detective determined that her strong denials that she sought to have sex with MacDonald had far more credibility than MacDonald’s allegations. The detective obtained warrants for MacDonald’s arrest, starting the chain of events that led to Tuesday’s court ruling overturning the state sodomy law.

Reflecting on 10 years at the Blade

It was December 2002. Sodomy laws remained on the books in 14 states. No state or jurisdiction in the country had yet legalized same-sex marriage (“marriage equality” was not a term in popular use). Congress had yet to pass a single piece of pro-gay legislation. The Democratic Party took gay money and votes but mostly paid lip service to our concerns. Barack Obama was a member of the Illinois state Senate. President George W. Bush was in his first term and the country was still reeling from the terrorist attacks of 9/11. Bush would later make opposition to gay rights a cornerstone of his re-election campaign, pushing for ballot measures on marriage in key battleground states and even using his State of the Union address to call for a federal constitutional amendment banning recognition of our relationships.

What a difference a decade makes.

Ten years after joining the Blade, I have been privileged to occupy a front-row seat to some of the most significant and historic events the movement has seen. Make no mistake that the election of Barack Obama marked the turning point in this quest for equality. Without his (fierce) advocacy, many of the landmark achievements of the past four years would not have been possible. But the tide began to turn before Obama’s arrival on the national political scene. And it began in 2003 with the Supreme Court decision in Lawrence v. Texas, which overturned sodomy laws in that state and 13 others, reversing a devastating 1986 ruling in Bowers v. Hardwick that upheld a similar law in Georgia.

Justice Anthony Kennedy, still considered the court’s swing vote, wrote the unforgettable majority opinion: “The petitioners [Lawrence and Garner] are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Finally, after decades of struggle, the mere fact of being gay could no longer be considered criminal.

Kennedy noted that the Lawrence case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” That, however, has finally changed as the high court this year agreed to hear two such cases on the Defense of Marriage Act and California’s Prop 8. In 10 short years, we’ve gone from fighting over private sex acts to impending Supreme Court rulings on marriage equality.

That ruling helped to trigger a wave of fast-moving change. Just a year later, in 2004, Massachusetts became the first state to legalize same-sex marriage. And the good news keeps coming. From Obama’s victory in 2008 to Congress passing its first LGBT rights bill — an expansion of the federal hate crimes law — to repeal of “Don’t Ask, Don’t Tell.”

There have been so many highlights during my 10 years at the Blade, but one moment that has always stayed with me occurred in June 2009 at President Obama’s first Pride Month reception in the White House. Obama, flanked by first lady Michelle Obama, said, “Welcome to your house.” It was such a simple gesture, yet they were words that none of us had ever heard before. And the president and first lady stayed to mingle, chat and pose for photos as a DJ spun Madonna tunes in the East Wing. A joyous and surreal moment after so many bleak years under Bush.

It hasn’t been all cocktails and dance divas, though.

I’ve edited and written countless stories over the past decade and two have haunted me. We profiled a Baltimore gay couple in their 30s, both public school teachers. One was diagnosed with cancer and died within months. He’d been estranged from his family over his sexual orientation and had a will and other legal documents in place at his death. The family sued to have their son’s body exhumed and moved to the family plot in Tennessee — and they won. The surviving partner finally prevailed on appeal but lost everything in the process of an expensive legal battle to simply keep his partner in the ground.

In another case, the Blade exposed the fact that four teens shot on a Newark, N.J., playground were gay. Three of them died. The mainstream media refused to report the basic fact that this was a hate crime motivated by the victims’ sexual orientation.

It’s been a whirlwind and unforgettable decade, from interviewing newsmakers and celebrities to chronicling historic civil rights advances to mourning crime victims to fighting with Bill O’Reilly over the evils of Scientology and outing closet cases like Shepard Smith.

As we celebrate our 2012 Election Day victories, we look forward to a time when true equality comes to all 50 states and to countries around the world. We’re not there yet and, so, keep reading.

Gay What?

NEWS