Challenge to Virginia Sodomy Statute, MacDonald v. Moose (amicus curiae)
William MacDonald was charged with soliciting sodomy under Virginia’s Crimes Against Nature statute, even though the Supreme Court had ruled such statutes unconstitutional in Lawrence v. Texas. Virginia courts would not allow him to challenge the constitutionality of the statute because his offense involved a minor. The defendant filed a federal habeas petition which is now on appeal. We filed an amicus brief on June 5, 2012, arguing that a facially invalid statute may not be used against anyone, and that MacDonald should have been charged under a statute specifically directed against sex with minors. Oral argument took place on October 24, 2012. On March 12, 2013, a panel of the U.S. Court of Appeals for the Fourth Circuit held that Virginia’s “Crimes Against Nature” statute, which criminalizes all acts of oral and anal sex (including private acts between consenting married and unmarried adults), is unconstitutional, and ordered the lower court to grant McDonald’s habeas petition. The Court of Appeals wrote that the U.S. Supreme Court’s landmark 2003 ruling, Lawrence v. Texas, invalidated all state statutes that criminalize sexual activity between consenting adults, and ruled that such statutes should not be the basis of a criminal prosecution. On June 25, 2013, the Virginia Attorney General filed a petition asking the U.S. Supreme Court to review the case. On October 7, 2013, the Supreme Court declined to hear the case.
Court Documents (click link to view .pdf)
Brief of Amicus Curiae - U.S. Court of Appeals, Fourth Circuit
Opinion - U.S. Court of Appeals, Fourth Circuit