With Buzzfeed having picked up Virginia’s petition for rehearing en banc in MacDonald v. Moose (previously discussed here and here), I am prompted to post a quotation from the Court’s opinion in Lawrence v. Texas that recently jumped out at me.
First, some background. I argued in my first post on the case that the panel majority misread Lawrence v. Texas as requiring facial invalidation of the “anti-sodomy provision” in Virginia’s “crimes against nature” statute. One basis for my argument was the claim that “reasoning throughout [Lawrence] is all about the petitioners’ personal interests in liberty and privacy.” One commenter on that post criticized its reasoning by asserting that “bending over backwards to say that the facts here are slightly different and that should be sufficient is not a reasonable position to take because it is based on narrowing Justice Kennedy’s entire due-process analysis to one case and one case only.” That is not the position I meant to adopt. Rather, the force of Lawrence as a precedent rests on its ratio decidendi, which is an understanding of the constitutionally protected personal liberty interests of two adults to engage in certain private, consensual conduct.
Apart from what I have previously posted on the subject, support for my reading of the case can be seen in Justice Kennedy’s description of how the case ought to be decided: “We conclude the case should be resolved 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” (emphasis added). If one reads Lawrence in this way, then the Virginia court’s disposition of the petitioner’s challenge to his conviction was plainly not contrary to or an unreasonable application of clearly established law.
[…] [UPDATE: Additional discussion at Woollard, MacDonald, and Standing to Raise a "Facial Challenge" and here.] […]
So, just suppose that Justice Kennedy had used this verbiage, “this case does not involve persons unable to consent.” See, minors (under 18 for voting purposes) do not magically get their constitutional rights handed to them at 18. Let’s say that two 17 year olds wish to practice sodomy with each other, under Lawrence, (at least the way you interpret Lawrence) they are felons. You cannot have it both ways.
The age of consent in Virginia used to be 16 — that is until this case created starre decisis — bad move on Virginia’s part.
Also, explain to me why the Legislature DOES have a law which already makes it a crime to solicit a juvenile to commit a felony — but the cut-off is 15 years old.
You cannot explain it, because the sodomy law was never about minors – it is a homophobic blue law and if you got caught 400 years ago, you were hanged.
There are certainly reasonable arguments for extending Lawrence, but an argument for extending Lawrence is different from an argument about what is established by the holding of Lawrence. And federal courts on habeas review cannot overturn state court decisions by extending prior Supreme Court decisions. Scenarios like the one you contemplate have been addressed by prior commentators, who have also advanced an Equal Protection argument like the Equal Protection argument in the briefs in MacDonald v. Moose. See Michael Kent Curtis & Shannon Gilreath, Transforming Teenagers into Oral Sex Felons: The Persistence of the Crime Against Nature after Lawrence v. Texas, 43 Wake Forest L. Rev. 155 (2008). The starting point for that analysis, however, is a recognition of the limits of the Lawrence holding. Their article begins as follows: “This Article focuses on the persistence of the ‘crime against nature,’ a crime which seemed to have been largely buried by the Supreme Court in its 2003 decision in Lawrence v. Texas. Lawrence struck down ‘crime against nature’ statutes as applied to consenting adults in private. But, as several state courts have read their statutes, the ‘crime’ survives for use in other circumstances.” (emphasis in original)
I’m a little confused. Is the statute in question almost identical to the law struck down in Lawrence? If so, is “a law repugnant to the constitution … void, Marbury v Madison, “clearly established law” for the purposes of AEDPA?
The scope of invalidation is precisely the question.
Marbury did not result in the invalidity of the entire Judiciary Act of 1789, or even of all of Section 13, which was the section at issue in the case. Similarly, not even the Fourth Circuit panel decision held invalid the bestiality portion of the crimes against nature statute even though it appears in the same statutory section (indeed, the same sentence).
Laws that intrude on the constitutionally protected liberty interests recognized in Lawrence are invalid at least to that extent. To render them further invalid requires some additional step, such as an overbreadth doctrine or an inseverability determination. There is no overbreadth doctrine in this area of constitutional law, is there? One that is clearly established by holdings of the Supreme Court of the United States? And because severability is a question of state law, not federal, it cannot form the basis of habeas relief.
I suppose I disagree with your use of the phrase “at least to that extent,” and that might be where the core disagreement lies. It occurs to me that people who think Lawrence was wrongly decided in the first place may not want to give it a full reading; instead, they’ll try to distinguish it away. Cf. Miranda v. Arizona.
I doubt that Professors Michael Kent Curtis and Shannon Gilreath, who authored the article that I quote above, “think Lawrence was wrongly decided in the first place.” And yet their understanding matches the one deployed by the Virginia Court of Appeals. They write that Lawrence “struck down ‘crime against nature’ statutes as applied to consenting adults in private.” (emphasis in original) That formulation seems correct to me, based on the language from Justice Kennedy’s opinion that I have quoted in this post and others.
Motivational attributions are dangerous, but if one is going to deploy them, one should do so evenhandedly and consider the possibility that those who think Lawrence did not go far enough are overreading the opinion.
Hmmm. I went back and read the good professors’ article. “Their understanding” isn’t exactly what you say it is. Rather, they simply describe other state appellate courts refusing to treat “crimes against nature” laws as constitutional nullities, and then use this as a jumping-off point to attack unequal and irrational applications. To the effect of the laws’ overall worth, they believe that “[t]he legislatures should once and for all rid us of the heritage of bigotry and persecution embodied in ‘crime against nature’ laws.”
I also don’t think I’ve ever read from anywhere that “Lawrence did not go far enough.” No one is or was advocating for that position in this case, either. I think the argument in this case concerns whether Lawrence erased statutes like Texas and Virginia’s–which never made any distinction based on the criteria Justice Kennedy set out and to which you ascribe so much significance. Those laws are either validly on the books or they are not. It’s simply not for judges to do legislators’ jobs and rewrite statutes with all sorts of modern caveats so they will comply with what Lawrence said would be constitutionally permissible. The ballot box has always been the better route.
The operative understanding of Lawrence in the Curtis/Gilreath article is that Lawrence invalidated crimes against nature statutes for some applications but not for others. The article is about strategies for ending or blocking the prosecution of minors under “crimes against nature” statutes in jurisdictions that still enforce them after Lawrence. As its title indicates, the article takes as a premise “the persistence of the crime against nature after Lawrence v. Texas.” The authors argue that states should construe their statutes not to cover certain conduct and that the Equal Protection Clause prohibits certain applications of the statutes. If the Fourth Circuit’s reading of Lawrence is correct, however, the professors missed a much easier argument for the outcome that they want, namely that the statutes were totally void under Lawrence v. Texas. But they did not advance that argument. And the reason that they didn’t is that, in their view, Lawrence “struck down ‘crime against nature’ statutes as applied to consenting adults in private.” (emphasis in original) My point in bringing the article up originally was simply to respond to the motivational attribution that “people who think Lawrence was wrongly decided in the first place may not want to give it a full reading.” The implicit argument is that a “full reading” is one that reads Lawrence as requiring the facial invalidity of statutes like Virginia’s. Curtis/Gilreath do not read Lawrence as requiring the facial invalidity of statute’s like Virginia’s. Yet because they agree with Lawrence, their as-applied understanding of it cannot be chalked up to disagreement.
One way of framing the question is whether Lawrence “erased” Virginia’s statute, but that it is just a figure of speech. The law is validly “on the books”; the question is whether it may ever validly be enforced. That, in turn, depends on the scope of Lawrence’s reasoning. And that reasoning is about the personal liberty interests of consenting adults. To extend that reasoning into total invalidation requires overbreadth doctrine or inseverability reasoning. Not even the Fourth Circuit’s decision suggested that the statute was not validly “on the books.” The decision explicitly declined to call into question whether the statute may validly be enforced with respect to bestiality. Instead, the Court viewed one textual segment of a statutory subsection, a segment that it termed “the anti-sodomy provision,” as completely void based on Lawrence. With respect to the other part of the statutory subsection, the opinion states that the “constitutionality of the bestiality portion of subsection (A) is not challenged in this proceeding nor affected by today’s decision.”
Fair enough. The statute reads thusly: “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 aClass 6 felony ….” Take my position as Lawrence erased everything except the first and last clauses. I didn’t catch anything within the other clauses about minors, just “male or female person[s].” Perhaps judges should become activists if it means the government might not win. Shouldn’t the rule of lenity prevent that sort of thing from occurring, though? It seems strange to resuscitate a constitutionally dubious statute by reading it in a manner that purposefully restrains the public’s liberty.
Understood, and I appreciate your careful analysis and patient exposition. Your invocation of the rule of lenity brings to mind a peculiar feature of this area of the law, which is that the continued enforceability of a law depends in part on how precisely the relevant constitutional test delineates between constitutional and unconstitutional applications. The rule of lenity resolves ambiguities in statutory reach in favor of the government. Here there is no ambiguity about statutory reach considered in itself. The potential for ambiguity comes in with the recognition that some applications of the statute are unconstitutional because of their intrusion on protected liberty interests recognized in Lawrence. But the reasoning of Lawrence is clear enough that someone contemplating a statutorily forbidden sex act with a minor should not reasonably expect to be able to invoke Lawrence’s protection.
You’re right that there is no mention of minors in this subsection of the law. But why does/how should that matter under the relevant doctrine? Your approach seems more like the First Circuit approach reversed by the Supreme Court in Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006), which held New Hampshire’s parental notification law facially unconstitutional because it did not contain a textual health exception.
Hmmm. I’m picking up your sarcasm. http://www.youtube.com/watch?v=TgvyparsP0c
And I’m pretty sure that your version of the rule of lenity “resolv[ing] ambiguities in statutory reach in favor of the government” is incorrect. Last I checked, “[t]he rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (citations omitted).
I also went back and read Ayotte, as well as re-reading the Fourth Circuit’s discussion thereof. Because this case doesn’t fit into the abortion black hole of constitutional jurisprudence, I think it would be fairer to place it within Justice O’Connor’s explanation for how courts should be “wary of legislatures who would rely on our intervention, for ‘[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside’ to announce to whom the statute may be applied. ‘This would, to some extent, substitute the judicial for the legislative department of the government.'” Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 330 (2006) (quoting United States v. Reese, 92 U.S. 214, 221 (1876)). Seems to me that what was true in 1876 about the separation of powers should still be true today, especially where we’re dealing with a criminal statute.
Just one more thing. What about two teenagers? There still is a lot of consensual teenage conduct that would violate the anti-sodomy provision. I mean, violating it would at least bring down the rate of teenage pregnancies (and politicians will wisely point to this type of useful statistic as a justifiable reason to either re-elect or kick the bums out). I suppose your position is that the Virginia law should be enforceable to them because Justice Kennedy only used the word “adults” in Lawrence, and the kids in Virginia are just out of luck.
I’m sure the counter-argument to this is something along the lines of trusting prosecutors and all that jazz. The Supreme Court spoke about that a few years ago. Something along the lines of how the Bill of Rights “protects [people] against the Government; it does not leave us at the mercy of the noblesse oblige. We would not uphold an unconstitutional
statute merely because the Government promised to use it responsibly.” United States v. Stevens, 130 S.Ct. 1577, 1591 (2010). Thankfully, my time as a teenager was spent in Georgia (which, by that time, had repealed the section taken up in Bowers)–not a state that has apparently forgotten its own motto for the purposes of short term political gain.
I typed too quickly. Your version of the rule of lenity is what I meant to write. Plug it in and my argument works.
I did not intend to be sarcastic and I’m perhaps more surprised by your response than I should be, but at least I got to watch a clip of Tommy Boy. Your clarification of position was a significant concession but one completely warranted by the legal analysis up to that point. I still don’t see how you justify the Fourth Circuit’s carving out one segment of a statutory subsection beyond its unconstitutional applications under Lawrence. The principle you invoke from Reese would take down the whole subsection if actually applied, but that’s not your position, as your comment earlier makes clear. If you want to switch, that’s your prerogative, but then you’ll run into the Supreme Court’s inconsistency with respect to the Reese principle. See United States v. Raines, 362 U.S. 17, 24 (1960) (“[T]o the extent Reese did depend on an approach inconsistent with what we think the better one and the one established by the weightiest of the subsequent cases, we cannot follow it here.”).
I don’t know if it’s inconsistent because erasing clauses that are constitutionally dubious is different from inserting new words into the statute for the purpose of reading into it a saving construction. The former method, although somewhat blunt, simply eliminates the more constitutionally suspect sections whilst the latter approach places a judge in the position of reading in novel classes of criminal behavior that the defendant could not have been aware of beforehand. And that’s a distinct situation from Ayotte because the saving construction the Court applied there never added another route from criminal liability.
Think about this statute from a citizen’s perspective for a second. How the hell could he read the statutory subsection quoted above to say anything about minors? There is no way on God’s green Earth that a judge can sit back with a straight face and argue that minors were the real protected class in that statute. Now, maybe animals–as the first clause seems to stand largely apart from the rest of the statute’s content–but there’s nothing anywhere from 1768 onwards that would suggest minors were a special concern for the purposes of that law.
Of course, the counter argument to this is the good ole’ “Won’t somebody PLEASE think of the children?” http://www.youtube.com/embed/Qh2sWSVRrmo?autoplay=1
I see the surface distinction between text severability and application severability, but both are acceptable forms of severability under current doctrine and therefore questions of state law. Reese can be read to suggest some Due Process limitations on application severability, which would then be a matter of federal law. But there’s no real question here of fair notice about what is and is not criminalized. The statute is clear. Any unclarity in what someone can or cannot do without criminal liability would come from the scope of the constitutional protected liberty interests recognized by Lawrence. And Lawrence is pretty clear about not addressing interactions with minors.
Suppose that immediately after Lawrence, the Virginia legislature had added the following language to the statutory subsection (I’m not a legislative drafter so pardon the awkward phrasing, but I think you’ll get the idea): “Provided, that this subsection shall neither be construed nor applied to extend criminal liability to the constitutionally protected private sexual conduct of consenting adults, as recognized by the Supreme Court in Lawrence v. Texas.” If that language had been in the statute, petitioner would have had no valid constitutional claim on habeas review. But it really should make no difference whether that language is in there or not. For it is already there as a matter of constitutional command.
Finally, there is no constitutionally significant difference between the metaphorical operations of “erasing clauses that are constitutionally dubious” and “inserting new words into the statute.” Both are just a manner of speaking and both are constitutionally permissible. Moreover, whether a judicial decision has an effect equivalent to one or the other depends on quirks of statutory drafting. Consider an example based on RFRA, which could have been drafted in different ways. Here are two: (1) “Government shall not substantially burden the exercise of religion unless doing so is the least restrictive means of advancing a compelling government interest”; (2) “Neither state nor federal government shall substantially burden the exercise of religion unless doing so is the least restrictive means of advancing a compelling government interest.” The constitutional rule against which this statute is measured allows RFRA to be applied against the federal government but not against the state government. Whether that is accomplished by metaphorically writing in words of restriction (as would be the case for version (1)) or metaphorically erasing words of extension (as would be the case for version (2)) is of no constitutional significance. Both involve the same permissible exercise of judicial power.
I absolutely agree with much of what you’re saying in the first part of your reply. The only problem I have is with whether it would make a difference if the Virginia Legislature added that language. If they had, I’d fully agree with you regarding this case. Their purposeful failure to do that, however, shouldn’t magically change the statute’s meaning after Lawrence came down. Saving constructions can only go so far, and it really shouldn’t be for judges to do that sort of thing–especially where the legislature actively ignored Lawrence in order to gain political points.
On your second point, you may be logically correct, but I’ve never seen judges very comfortable with just reading in new words. See Dissent in Healthcare Cases. And isn’t the normal approach enjoining only certain clauses or statutes when it’s a facial attack? See Healthcare Cases Majority (deleting the coercive Medicaid expansion provisions).
On the first point, it’s only fair to criticize the legislature for having “actively ignored Lawrence” if the Supreme Court’s decision in that case required some legislative action to preserve the constitutional remainder of the partially unconstitutional statute. And no such action was necessary under accepted constitutional doctrine and severability rules.
Judges may be (and should be) uncomfortable “reading in new words.” But once we recognize the metaphor for what it is, that discomfort should disappear, for they are not actually doing what it is that should make them uncomfortable to do. Some constitutional tests restrict the as-applied reach of statutes whose text extends more broadly. Think, for example, of a holding that the extension of jurisdiction under a state long-arm statute violates Due Process under particular circumstances. Such a holding does not invalidate the particular subsection of the long-arm statute whose application exceeded the state’s constitutional reach. And when a court holds in a later case that long-arm jurisdiction extends to a particular set of facts under the same subsection of the long-arm statute whose reach went too far in the first case, we would not describe that as reading in words of limitation to the statute.