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A Court order with potential political effect

Chief Justice John G. Roberts, Jr., in a simple order but one that could have a side effect on Virginia’s campaign this year to elect a new governor, turned aside on Friday afternoon a request by the state’s legal team to put on hold a lower court ruling that nullified  a sweeping anti-sodomy state law.

The Chief Justice gave no explanation for denying the request filed by state legal officers, including Kenneth T. Cuccinelli II — the state attorney general who is the GOP candidate for governor.  Cuccinelli has made a legal assault on sodomy a prominent issue in his campaign, promoting it as an effort to protect Virginia’s children, and he has drawn criticism for that stance.  Separately, he and his staff have asked the Supreme Court to review the constitutionality of the state law at issue.  The full Court has not yet acted on that request, in the pending case of Moose v. MacDonald (docket 12-1490).

The Fourth Circuit Court, in a split decision in March, ruled that Virginia could not enforce its law that makes it a crime for anyone to engage in oral or anal sex, no matter what the facts were in a specific case.  In technical terms, the Circuit Court majority struck down the law as written, not as it might be applied in any given case.  That decision relied on the Supreme Court’s 2003 decision in Lawrence v. Texas, nullifying a Texas anti-sodomy law and recognizing a constitutional right of privacy for homosexual sex acts.

In late June, the state filed its petition seeking review of the Fourth Circuit decision, and then a month later asked the Court to block the lower court ruling until after the Justices acted on the petition itself.  That request went to the Chief Justice, who handles such procedural matters for the geographic area that includes Virginia and other mid-Atlantic states — the Fourth Circuit.

Roberts, after seeking a response to the stay request from the lawyers defending the individual prosecuted in the case, William Scott MacDonald of Colonial Heights, chose to act on the issue without referring it to his colleagues.  On Friday, he denied the stay application (docket 13A114) without issuing an opinion.

One of the questions a Justice ponders in considering such a postponement plea is whether there is a likelihood that the Court will agree to hear the lower court opinion at stake, and a good chance the lower court would be reversed.  Roberts’s order on Friday may be regarded as a hint — but no more than that — of a denial of review of the case when the full Court considers it.

However, the Court’s docket for the case shows that one or more Justices asked for a formal response to the state’s petition; that is not due until August 26.   The lawyers for MacDonald, however, have already argued against granting review, in their response to the stay request.  The Court’s first chance to consider whether it will review the case could be in its first private Conference of the new Term, on September 30.

There is now a conflict between the ruling of the Fourth Circuit and a separate ruling by a Virginia appeals court on the meaning of the Supreme Court’s Lawrence decision a decade ago.  The Fourth Circuit read that decision as barring any state from enforcing a general anti-sodomy law — that is, one that draws no distinctions between the age or identity of those involved.  The Virginia court, however, has interpreted the decision as barring only the enforcement of such laws against consenting adults, leaving states free to enforce such a law in a specific case when one of the persons involved is a minor.

The Fourth Circuit said that, in order to permit the use of a law totally banning oral or anal sex, a court would have to rewrite it, and courts are not permitted to do that.   The Virginia court, however, has said that the Supreme Court made clear in the Lawrence decision that it was not ruling on enforcement of such a law in a case involving a minor.

The MacDonald case grows out of an incident in Colonial Heights in September 2004.  Prosecutors charged him with soliciting a seventeen-year-old female for oral sex and intercourse.  He was convicted under a state criminal solicitation law, based upon an alleged violation of the anti-sodomy law.  He has served part of a ten-year sentence and, upon release, he was placed on probation and required to register as a sex offender.

MacDonald took his case to federal court in a habeas challenge after failing to get his conviction overturned in state courts.  The Fourth Circuit overturned his conviction, and ordered his release.

Virginia officials are asking the Supreme Court to overturn the Fourth Circuit decision without following the usual procedure of having written legal briefs and oral argument, to “limit the damage of this decision to the sovereign interests” of Virginia and other states.  The officials also offered a second argument, contending that the Fourth Circuit has misinterpreted the Lawrence decision.

Recommended Citation: Lyle Denniston, A Court order with potential political effect, SCOTUSblog (Aug. 9, 2013, 2:33 PM),