A closer look at Virginia’s “Lawrence fix” shows Cuccinelli’s consistency and Fourth Circuit’s faulty conclusion

A recent post by Michael Dorf about Virginia’s cert petition in Moose v. MacDonald reminded me of one thing that I like about the law. It can channel moral and political disagreement in various ways so that people who might disagree as to non-legal matters can agree about legal matters. Dorf concludes, contrary to some of AG Ken Cuccinelli’s most vocal critics, that “Cuccinelli appears to have a pretty good legal argument that the Fourth Circuit decided the case erroneously.” As I have previously argued (here, here, here, and here), Virginia’s argument is “pretty good” and maybe even better than that. This does not mean that the Supreme Court will grant cert, of course, but this is one of those unusual cases where summary reversal might get serious consideration.

Dorf’s conclusion about the strength of Virginia’s petition depends on the deferential standard of review on federal habeas supplied by 28 U.S.C. § 2254(d). That provision prohibits a federal court from granting an application for a writ of habeas corpus to one in custody pursuant to state proceedings unless the State adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” As long as the Virginia state court’s view was not unreasonable, the Fourth Circuit should not have granted relief.

Although disagreeing with most critics on the merits, Dorf apparently agrees that the course of proceedings nevertheless reveals “Cuccinell’s hypocrisy” and his “audacity.” This assessment relies on Cuccinelli’s opposition to a proposed “Lawrence fix” bill that Cuccinelli voted against as a legislator. Here’s the key paragraph of Dorf’s post on this point:

Much of the media coverage of the case has understandably focused on Cuccinelli’s hypocrisy.  The Virginia legislature tried to replace the blanket sodomy prohibition–which applies to everyone regardless of their age–with a narrower law that would focus simply on sex with minors, but Cuccinelli played a role in squashing that effort.  Now he has the audacity to say that he needs to use the broader law as his only available means to target sodomy with minors. Dahlia Lithwick nicely captures what is so outrageous about this move when she writes: “You can’t really stagger around swinging a huge, unwieldy legal mallet and claiming it’s the only tool you have against pedophilia. Not when you opted to turn down the offer of a scalpel.”

This assessment misdescribes the nature of the proposed “Lawrence fix”  in a way that undercuts the analysis. The bill did three things: (1) it separated the bestiality and sodomy prohibitions into separately numbered subsections; (2) it provided that the sodomy prohibition “shall not apply where all persons are consenting adults who are not in a public place and who are not aiding, abetting, procuring, engaging in or performing any act in furtherance of prostitution”; and (3) it changed the classification of the sodomy offense from a felony to a misdemeanor (which may have been the reason that some legislators opposed it). Note that nothing in these changes had to do with age; the bill did not “focus simply on sex with minors,” but instead codified the Virginia legislature’s understanding of Lawrence.

And here is where things get (legally) interesting: If the Virginia legislature’s understanding of Lawrence was correct, then the Fourth Circuit‘s analysis was wrong. Under the Virginia legislature’s understanding of Lawrence, the conduct underlying the petitioner’s solicitation offense (solicitation of oral sex from a minor) was not constitutionally protected. The narrowing that would have been accomplished as a matter of state law under the proposed fix would not have excluded petitioner’s conduct from the sweep of the prohibition. Not only would sodomy involving minors have remained within the prohibition, so too would have sodomy in a public place, and sodomy related to prostitution. The proposed Lawrence fix relied on the very same reading of Lawrence defended by Virginia in Moose v. MacDonald. 

The Fourth Circuit determined that it could not adopt this reading because “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 that runs afoul of the Supreme Court’s decision in Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006).” And yet the Fourth Circuit would have had to do precisely nothing to Virginia’s law in order to deny habeas relief. As a matter of federal law, the prohibition against unconstitutional applications of the sodomy statute already existed because of Lawrence itself. Apart from the change in penalty, there would have been no difference in the state of the law as it existed at the time of petitioner’s September 2004 conduct of conviction if Virginia had enacted the proposed Lawrence fix earlier that year.

And here’s where it gets even more (legally) interesting. The change in penalty would have been significant for petitioner. If the proposed bill had passed, petitioner could not have been convicted of solicitation of a felony because oral sex with a 17-year-old, unrelated minor would have been changed to a misdemeanor instead of a felony. Maybe that would have been a good change in the law; maybe it would have been bad. But by including it in addition to the Lawrence fix, the bill’s sponsors probably lost some votes, perhaps including Cuccinelli’s. If so, then Cuccinelli’s stance is not only not hypocritical, but completely consistent. And it is the critics who are subject to the accusation instead. For the proposed bill would not have enabled Virginia to prosecute the petitioner’s conduct in the way that it did.

Okay, now suppose that Virginia had enacted a Lawrence fix identical to the one proposed but without the change in penalty. Perhaps Cuccinelli could have voted for it. There would have been no reason not to because it would not have worked any real change in the law. If petitioner had then raised a Lawrence-based claim on direct review, he would have had to argue for an extension of Lawrence. And on the supposition that this would have been unsuccessful, his claim for habeas relief would have been unsuccessful because the § 2254(d) standard of review precludes that kind of extension of the law.

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How is bestiality still validly punished as a crime in Virginia? Or is it no longer a crime? Some questions for Dahlia Lithwick.

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.

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A Lawrence quotation prompted by Buzzfeed’s pick-up of MacDonald v. Moose

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.

 

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Woollard, MacDonald, and Standing to Raise a “Facial Challenge”

1. In a previous post, I criticized the Fourth Circuit’s habeas grant in MacDonald v. Moose. The Fourth Circuit held in that case that one textual provision of Virginia’s more encompassing “crimes against nature” statute was facially unconstitutional under Lawrence v. Texas. As my post indicated, and as some comments to the post discussed in detail, the Fourth Circuit was not making this determination de novo but rather under AEDPA’s deferential standard of review for claims adjudicated on the merits in state court proceedings.  The relevant state court determinations in MacDonald were that the statute was constitutional as applied to petitioner’s conduct and that he lacked standing to bring his facial challenge. Here is the reasoning with respect to the facial challenge:

MacDonald contends the sodomy statute, Code § 18.2-361(A), is facially unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment. In accord with our previous decisions, we hold that MacDonald lacks standing to assert this claim. See McDonald v. Commonwealth, 48 Va. App. 325, 329, 630 S.E.2d 754, 756 (2006) (“[W]e will only consider the constitutionality of Code § 18.2-361(A) as applied to appellant’s conduct.”); Singson v. Commonwealth, 46 Va. App. 724, 734, 621 S.E.2d 682, 686 (2005) (defendant lacks standing to challenge statute generally); Tjan v. Commonwealth, 46 Va. App. 698, 706, 621 S.E.2d 669, 673 (2005) (same); see also Grosso v. Commonwealth, 177 Va. 830, 839, 13 S.E.2d 285, 288 (1941) (“It is well settled that one challenging the constitutionality of a provision in a statute has the burden of showing that he himself has been injured thereby.”); Coleman v. City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241 (1988) (“generally, a litigant may challenge the constitutionality of a law only as it applies to him or her”).

According to the Fourth Circuit panel opinion, however, one discrete textual provision of Virginia’s statute was facially unconstitutional, and “the state court’s standing determination, as endorsed by the district court, was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” (emphasis added).

2. Nine days after the Fourth Circuit issued its opinion in MacDonald v. Moose, the court issued an opinion in Woollard v. Gallagher. Woollard was a Second Amendment challenge to Maryland’s “good and substantial reason” permitting requirement for gun possession outside one’s home. The district court in Woollard had held that this requirement was facially unconstitutional. In addition to rejecting Woollard’s claim that the permitting requirement was unconstitutional as applied to him, the panel opinion held that Woollard lacked standing to bring his facial challenge:

Because we conclude that the good-and-substantial-reason requirement is constitutional under the Second Amendment as applied to Appellee Woollard, we also must reject the Appellees’ facial challenge. See Masciandaro, 638 F.3d at 474. As the Supreme Court has explained, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); see also Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (“It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.”).

On its face, this reasoning looks just like the reasoning that the Fourth Circuit held was “contrary to and involved and unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States” when that reasoning was used by Virginia’s Court of Appeals in MacDonald.

3. The tension between the two cases cannot be explained on the grounds that the Woollard panel was unaware of the recent MacDonald decision. According to the date listed on the opinions, the two appeals were argued on the same day and two out of the three judges were the same in both cases (Judge King and Judge Diaz). And most importantly, Judge King authored both opinions.

4. The doctrine surrounding facial and as-applied challenges is notoriously murky. Some may view it as complex; others may view it as simply confused. In my view, the labels “facial” and “as-applied” hurt more than they help insofar as each lacks a stable meaning across cases. But to the extent that MacDonald’s facial challenge was an overbreadth-type (“bottom-up”) challenge, in which facial unconstitutionality depends on the proportion of unconstitutional applications to constitutional applications, then the reasoning used by the Virginia Court of Appeals in refusing to adjudicate the challenge seems unimpeachable (as the Fourth Circuit’s use of that reasoning in Woollard would seem to indicate). (For a discussion of the distinction between valid-rule  (or “top-down”) facial challenges and overbreadth-type (or “bottom-up”) facial challenges, see Richard H. Fallon, Jr., Fact and Fiction about Facial Challenges, 99 Cal. L. Rev. 915, 931 (2011), a law review article cited by Judge King’s majority opinion in MacDonald.)

5. According to the portion of the appellant’s brief quoted by the panel opinion in MacDonald, the facial challenge in that case was an overbreadth-type challenge:

MacDonald maintains that he possesses standing to pursue his facial challenge under the Due Process Clause because the anti-sodomy provision was rendered unconstitutional by Lawrence. He relies on established Supreme Court authority for the proposition that standing exists: “where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of cases it was originally designed to cover.” Br. of Appellant 14 (quoting United States v. Raines, 362 U.S. 17, 23 (1960)).

6. Virginia’s petition for en banc review is pending at the court. Its principal focus is the application of 2254(d) with respect to the state court’s as-applied understanding of Lawrence v. Texas. If the Fourth Circuit does grant en banc review, perhaps it will also take the opportunity to clarify the law surrounding facial and as-applied challenges more generally.

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Some JHW III for AMK and others re: same-sex marriage and indulging “the impulse to constitutionalize”

Times were different in 2006 when Judge Wilkinson wrote the Duke Law Journal piece excerpted below, Gay Rights and American Constitutionalism: What’s a Constitution For?

The California Supreme Court had not yet construed that State’s constitution to provide a right to same-sex marriage. But the citizens of Virginia were considering an amendment to that State’s constitution (an amendment that ultimately passed).

Judge Wilkinson argued against using a constitutional amendment as a ” preemptive strike against what some hypothetical court in some hypothetical jurisdiction might some day say.” He thought that “it would be astonishing for a court applying the rational basis scrutiny used in Romer and arguably in Lawrence to hold that a state lacks a rational basis to define marriage in its public policy, resting as that policy does on centuries of tradition and experience.” And  “[i]t would be particularly astonishing for courts to make such a pronouncement in the domestic relations sphere that lies at the heart of states’ competence.” Because “Lawrence and Romer are a far cry from this momentous step,” he argued, a constitutional amendment “would simply indulge the worst suspicions about the Supreme Court, preempting a decision that may never come.”

Some additional excerpts:

A tragedy is befalling American constitutional law. Both left and right in the gay rights struggle have indiscriminately indulged the impulse to constitutionalize.

* * *

Lawrence has been taken to task for overblown rhetoric, its overruling of precedent, its repudiation of traditional moral values, its reliance on unenumerated rights, and its resort to foreign law, most especially a decision of the European Court of Human Rights. Still, the result in Lawrence is eminently just and humane; the real flaw of the decision was to set the struggle over gay rights on a constitutional course. The Court’s lack of faith and trust in democracy was endemic. * * * [D]emocracy itself was on a decent and humane path, and the Court’s decision to preempt it with a problematic constitutional pronouncement was dangerously shortsighted.

* * *

It would be astonishing for a court applying the rational basis scrutiny used in Romer and arguably in Lawrence to hold that a state lacks a rational basis to define marriage in its public policy, resting as that policy does on centuries of tradition and experience. It would be particularly astonishing for courts to make such a pronouncement in the domestic relations sphere that lies at the heart of states’ competence.

* * *

The marriage amendment phenomenon then can only be viewed as a preemptive strike against what some hypothetical court in some hypothetical jurisdiction might some day say. This is an insufficient basis on which to amend foundational texts like state constitutions. A constitutional amendment is not by nature a preemptive device. It is instead an extraordinary mechanism–a tool of last resort properly reserved for situations which present no other choice. To amend a constitution preemptively, in anticipation of the proverbial rainy day, is, simply put, gratuitous. Such needless use of the amendment process is antithetical to the very essence of constitutional lawmaking and to the notion of a fundamental, guiding, and multigenerational charter. * * * Although a state with no other recourse is surely justified in responding to an activist constitutional interpretation, gratuitous amendments to our most basic documents of governance are hurtful and alienating in a way all their own.

* * *

It is the job of legislatures, not constitutions, to reflect evolving standards and to register change from whatever direction it may arrive. Statutes are more amenable to adjustment and modification than constitutional provisions are. And American constitutional tradition has always preserved for majorities the right to overrule courts on policy matters through statutory amendment rather than through the cumbersome process of constitutional change.

* * *

This difference between constitutional and statutory law bears quite directly on the question of gay rights. No constitution should ever assign its citizens pariah status. No constitution should relegate its citizens so symbolically and semipermanently to the shadows of national life. As a matter of statute, however, the balance changes. Statutes exist for the expression of values central to the imperative of social cohesion. Statutes legitimately articulate within limits a community’s aspirations for marriage, the raising of children, and the conduct of family life. It is in this difference between constitutional and statutory law that America strikes the balance between claims of personal rights and assertions of community prerogative.

* * *

[T]he chief casualty of the same-sex marriage debate has been the American constitutional tradition. Although electorates understandably are more concerned with results than with process, the Framers were concerned supremely with process, and that process has made possible our civility, self-governance, and greatness as a democratic nation. * * * It is not wrong for gay citizens to wish to share fully in the life of this country, to partake of its most basic and sacred institution, and to experience the intimacy, bonding, and devotion to another that only an institution such as marriage can bring. To embrace this view one need not believe that sexual infidelities will disappear, but only that many gay couples will make good on their vows and lead fuller, richer, and more productive lives as a result.

 That, however, is hardly the end of the matter. Marriage between male and female is more than a matter of biological complementarity–the union of the two has been thought through the ages more mystical and profound than the separate identities of each alone. Without strong family structures, there will be no stable and healthy social order, and alternative marriage structures may weaken the sanction of law and custom necessary for human families to flourish and children to grow. These are no small risks, and present trends are not often more sound than the cumulative wisdom of the centuries.

Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? The dangers of doing otherwise are clear. When we  politicize our basic documents of governance, we deepen exponentially the wounds of civic life.

 The more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are much too sure they are right. Certainty is, to be sure, a constant feature of our politics–some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day’s time and arena. Their message is as clear today as it was at the Founding: Leave Constitutions alone!

Excerpts from: J. Harvie Wilkinson III, Gay Rights and American Constitutionalism: What’s A Constitution for?, 56 Duke L.J. 545 (2006).

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