When I was studying for the bar, I laughed when I read about the Commonwealth’s law banning “crimes against nature” which included “’carnal knowledge’ by one person of another by the anus or the mouth.” Of course, this is flatly contrary to Lawrence v. Texas, but I was told that since Virginia never enforced this law, there was no opportunity to challenge it (not too different than the sodomy statute at issue in Lawrence).
Well, the 4th Circuit has finally got around to finding this law unconstitutional. In this case, a person was convicted criminal solicitation of a minor, based on a predicate offense for “Crimes against nature.”
On October 24, 2011, MacDonald filed a timely notice of appeal. He thereafter requested the issuance of a certificate of appealability (“COA”) from this Court. See 28 U.S.C. § 2253(c)(1)(A). We granted his COA request on April 17, 2012, identifying the issue for appeal as whether Virginia Code section 18.2-361(A) is unconstitutional either facially or as applied in MacDonald’s case, in light of the Supreme Court’s Lawrence decision . . . As explained below, we are constrained to vacate the district court’s judgment and remand for an award of habeas corpus relief on the ground that the anti-sodomy provision facially violates the Due Process Clause of the Fourteenth Amendment.
ThinkProgress reports that 14 other states still have sodomy laws on the books!
Fourteen states still have sodomy laws on the books, including Texas – the state whose law was invalidated by the U.S. Supreme Court’s decision in Lawrence. While Texas notes the Lawrencedecision in its penal code, it takes a full act of the legislature to repeal a statute, and the legislature’s supermajority has not let the repeal come to a vote. Four other states only criminalize sodomy if you’re gay. Although most of these statutes are rarely if ever enforced, affirmative attempts to formally repeal them have faced Republican resistance.
Kevin Walsh is not persuaded.