By Mike Dorf
In late June, Virginia's notoriously conservative Attorney General Ken Cuccinelli (who is running for Governor) filed a cert petition in the U.S. Supreme Court in Moose v. MacDonald, seeking reversal of a Fourth Circuit opinion that granted habeas relief to one William Scott MacDonald. MacDonald (who was 47 years old at the time of the relevant conduct) was convicted of the felony of soliciting a crime by a minor for asking a seventeen-year-old girl to perform oral sex on him, with Virginia's "crime-against-nature" (i.e., sodomy) statute serving as the underlying crime that MacDonald was found to have solicited. The Virginia courts and the federal district court rejected MacDonald's arguments but the Fourth Circuit held that he was entitled to habeas relief because the anti-sodomy statute was facially unconstitutional pursuant to Lawrence v. Texas, and thus could not be constitutionally applied to anyone, including MacDonald. Late last week, CJ Roberts denied an application to stay the mandate while the Court considers whether to grant the cert petition.
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."
And yet Lithwick and other popular commentators appear to be going too far in their broader condemnation of Cuccinnelli's cert petition. They write as though Cuccinnelli is some fool who failed Con Law 1: The Supreme Court struck down an identical law a decade ago, so you can't enforce this one. Duh!
Except that's not quite right, because the case arises in the context of a habeas petition, and thus Cuccinelli has the Antiterrorism and Effective Death Penalty Act (AEDPA) on his side. The key provision of AEDPA says that in order for a federal court to grant a habeas petition by a state prisoner, the state court rulings affirming his custody must have been not merely wrong, but unreasonably wrong. Did the Virginia courts interpret Lawrence unreasonably? It's not obvious that they did.
The Fourth Circuit said that Lawrence implies that a blanket prohibition on sodomy is facially unconstitutional, and a facially unconstitutional law cannot be validly applied to anybody. I think that's probably right. But is the contrary view unreasonable? Is there no wiggle room in Lawrence? Both the Virginia Court of Appeals and Judge Diaz, dissenting in the Fourth Circuit, thought there was. The former read Lawrence as finding that a blanket anti-sodomy statute is invalid as applied to adults but potentially valid as applied to an adult engaging in sodomy with a minor (or in non-consensual sodomy). And they pointed to the following language in Lawrence, which qualified the holding: "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused."
The Fourth Circuit majority in MacDonald said that when Justice Kennedy talked about "the present case," he meant the case presented by the particular statute. The Virginia Court of Appeals and Judge Diaz said that he was referring to the facts of the Lawrence case. I'm not sure who's right, but so long as the question is subject to reasonable disagreement, then it's hard to say that the Virginia Court of Appeals was construing Lawrence unreasonably. And therefore, Cuccinelli has a pretty good argument that the Fourth Circuit erred.
There is a possible loophole, however. Although AEDPA speaks in categorical terms, the mostly pre-AEDPA case law recognizes an exception to deferential habeas review where a state prisoner invokes a rule of law that would constitutionally protect his own primary conduct. The idea is this: If the state cannot criminalize what someone did, then habeas should be available to free him, even if the state reasonably failed to realize that the underlying conduct was constitutionally protected; after all, the state has no legitimate interest in continuing to confine someone who is blameless, so far as the Constitution is concerned. This is the so-called "first exception" to the habeas limitations set forth in Teague v. Lane. Although AEDPA does not expressly incorporate the Teague exceptions, some other provisions of AEDPA appear to assume that it does.
But even assuming that AEDPA contains a tacit exception for protected primary conduct, it is hardly evident that MacDonald's primary conduct--soliciting oral sex from a 17-year-old--is constitutionally protected. And that was not the basis on which the Fourth Circuit granted relief. That court appeared to assume that MacDonald could have been prosecuted for soliciting oral sex from a minor under a statute that specifically forbids that conduct, but not under a blanket prohibition of sodomy.
Accordingly, Cuccinelli appears to have a pretty good legal argument that the Fourth Circuit decided the case erroneously. That doesn't mean the Supreme Court should grant cert, of course. Lots of rulings by federal appeals courts are arguably wrong, but cert is supposed to be reserved for important questions, not just error correction.
Moreover, I agree with the commentators who argue that it is bad policy to use general sodomy prohibitions as a means of prosecuting offenses--like statutory rape or non-consensual sodomy--that could be prosecuted under laws that are more narrowly drawn. Reliance on the broader anti-sodomy laws invites arbitrary or discriminatory enforcement. But bad policy can be lawful, and so the criticisms of Cuccinelli should, in this instance, be confined to the policy domain.