Writing at Slate, Dahlia Lithwick criticizes what she describes as Ken Cuccinelli’s “war on consensual sodomy in the commonwealth.” I have criticized Cuccinelli before myself, but it is a mistake to view Cuccinelli’s actions here as an attempt to “employ the federal courts to advance a personal moral agenda.” Although Lithwick’s piece makes some good policy arguments about the advisability of revising Virginia law, I disagree with Lithwick’s criticism of the Attorney General of Virginia for seeking Supreme Court review of a federal habeas corpus decision that incorrectly held a state law partially facially unconstitutional notwithstanding the strictures of 28 U.S.C. § 2254(d).
Before getting into some fairly dense discussion of things like facial challenges and severability that explains why Virginia’s position makes good legal sense, it is fitting at the outset (before I have lost both of my readers) to criticize Lithwick’s piece from the standpoint of legal journalism. It is, of course, fair to criticize a discretionary choice to seek discretionary review, and reasonable people may disagree about whether Virginia should have sought certiorari. But Lithwick’s characterization of the arguments advanced by Virginia in its petition for certiorari is inaccurate and misleading. Virginia is not asking the Supreme Court to “interpret [Virginia's] terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds,” as Lithwick puts it. Rather, Virginia is asking the Supreme Court to hold that Lawrence v. Texas invalidated Virginia’s statute only insofar as the statute is applied to criminalize consensual, private, non-commercial, adult conduct of the sort at issue Lawrence. According to Virginia’s petition, that is the view of Lawrence adopted by virtually every other court in the country. And asking the Supreme Court to rein in the Fourth Circuit’s outlier reading hardly amounts to “begging out-of-touch, elitist, liberal federal courts to make ad hoc decisions about which private sex acts are ‘unnatural’.” I realize that there can be many legitimate ways of characterizing legal arguments. But in this piece, Lithwick trades precision for sensationalism. Moreover, the version of the piece that is up as I write contains seventeen links, but not one of these is to Virginia’s actual legal arguments. At a minimum, Slate should immediately include a link to Virginia’s petition so that its readers can judge for themselves. And Slate should probably also add a link to the Fourth Circuit’s opinion itself. (The closest the piece comes now is a link to a post at Constitutional Law Prof Blog. Happy for them to get the traffic, go read!, but there’s nothing like going straight to the source.)
Okay, now for the technical legal stuff of a sort that I find interesting but that has the proven capacity to bore my family (and probably almost anyone else stuck with me on long car trips) to tears.
The legal claim underlying Lithwick’s piece appears to be that Virginia’s Attorney General should not defend a criminal conviction for solicitation of a minor to engage in oral sex because the law underlying the conviction is unconstitutional under Lawrence v. Texas. Lithwick calls that law Virginia’s “Crimes Against Nature law” in one place and Virginia’s “anti-sodomy statute” in another. The shift in wording is important because the statute criminalizing bestiality and sodomy is one and the same, Va. Code 18.2-361(A):
§ 18.2-361. Crimes against nature; penalty.
A. If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.
[Ed. note: Subsection B provides for different classes of felony in certain circumstances involving family members.]
If Virginia’s “Crimes Against Nature” law is entirely unconstitutional, then bestiality is no longer validly punished as a crime in Virginia. In order to make bestiality criminal again, on this view of things, the legislature should re-enact the law without linking the bestiality prohibition to the sodomy prohibition.
So is Va. Code 18.2-361(A) entirely unconstitutional under Lawrence v. Texas? As I have previously argued (here, here, and here), the answer is no. Lawrence protected the personal liberty interests of consenting adults only. The Supreme Court resolved Lawrence “by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.” And Justice Kennedy’s opinion for the Court made clear that the case did not involve, among other things, “minors” or “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.”
There are arguments that the Supreme Court should recognize constitutionally protected liberty interests beyond those recognized in Lawrence, of course, but the backward-looking question of what Lawrence actually held is distinct. And that was the question confronted by the Fourth Circuit in the post-Lawrence case of MacDonald v. Moose. Notwithstanding the explicit limitations of Lawrence‘s holding, the Fourth Circuit granted habeas relief to a forty-seven year-old man convicted of criminally soliciting oral sex from a seventeen year-old girl. The court reasoned that the conviction was invalid because the predicate felony was based on Va. Code 18.2-361(A) and the anti-sodomy part of that law was “facially unconstitutional.” The court thus held that the underlying state court determinations (i) that the statute was constitutional as applied to the petitioner, and, (ii) that he could not raise a facial challenge to the statute, were “contrary to, or an unreasonable application of, clearly established law, as determined by the Supreme Court of the United States.” 28 U.S.C. §2254(d)(1). That is the holding that Virginia seeks to have reversed by the Supreme Court. And it is that step of seeking Supreme Court review that Lithwick criticizes.
The precise legal basis for the Fourth Circuit’s holding of “partial facial unconstitutionality,” and for Lithwick’s apparent endorsement of it, remains elusive. Once one acknowledges that subsection (A) of Va. Code 18.2-361 is not totally unconstitutional–and nobody has argued (at least yet) that the anti-bestiality segment is unconstitutional–one needs some sort of principle to determine just how unconstitutional the partially unconstitutional law is. Virginia’s view, and mine, is that, for purposes of review pursuant to 28 U.S.C. § 2254(d)(1), the statute is just as unconstitutional as Lawrence‘s reasoning renders it (including the limitations to consenting adults, in private, non-commercial, etc.), but no further. The Fourth Circuit’s view, and Lithwick’s, is not only that statutory invalidity extends beyond applications that intrude on the Supreme Court-recognized personal liberty interests of consenting adults but also that such an extension can be recognized and enforced under the standard of review supplied by 28 U.S.C. § 2254(d)(1).
What explains the legal disagreement? Is Lithwick’s view based on a broader reading of Lawrence? Does Lithwick think, for example, that Lawrence rendered Virginia’s statute facially unconstitutional? If so, then why is bestiality still punishable as a crime in Virginia? Or is it?
My best guess is that Lithwick would argue that Va. Code 18.2-361(A) is not facially unconstitutional, but the discrete anti-sodomy segment of it is, and the anti-bestiality provision is severable. But once we allow for severability, why not “sever” applications instead of text (apart from the awkard and misleading excision imagery)? The Supreme Court has often done just that, as in United States v. Raines and United States v. Grace, for example. Does Lithwick reject application severability? If so, are decisions like Raines and Grace just more examples of judges reading statutes “the way they might read an optometrist’s eye chart—with a squint, a hand over one eye, and a prayer”?
Perhaps Lithwick would not have recourse to severability. After all, the assertion in her piece is categorical: “The law is plainly unconstitutional.” But because she refers more often to the unconstitutional law as involving sodomy only, and because she appears to agree with the Fourth Circuit’s decision in MacDonald v. Moose, I think she implicitly relies on severance to save the bestiality portion of the law. If so, a more precise statement of what Lithwick may have meant with her claim that “[t]he law is plainly unconstitutional” goes something like this:
The second and third clauses of Va. Code 18.2-361(A) are unconstitutional (in at least some applications and maybe all) and those two clauses may never validly be enforced. The fifth clause and all of subsection (B) fall as well. Subsection (C) can be ignored as irrelevant. But the first and the fourth clauses of subsection (A) are not unconstitutional. Because the second, third, and fifth clauses, as well as subsection (B) are severable, the first and fourth clauses of subsection (A) may continue to be enforced.
This is not reading a statute like an optometrist’s eye chart, but cutting it like a paper snowflake. (And again, maybe Lithwick would hold that bestiality really is no longer a crime in Virginia, instead.)
A comparable statement of Virginia’s position goes something like this:
Va. Code 18.2-361(A) is unconstitutional insofar as its application intrudes on the protected liberty interests recognized in Lawrence but no further.
I don’t know what others may think, but I find Virginia’s position much easier to read without squinting.