Friday, June 6, 2014
This is a brief case comment on MacDonald v. Moose, in which a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. The comment contends that the panel majority: (1) misapplied the deferential standard of review required by Congress for federal habeas review of state court convictions; (2) further muddled the already confused doctrine surrounding facial and as-applied challenges; and (3) incorrectly determined that applying Virginia's sodomy prohibition in conformity with Lawrence would have required drastic "judicial reformation" of Virginia's law. The court could have — and should have — easily applied Virginia’s law together with Lawrence, just as the Virginia courts did in the decade between Lawrence and MacDonald by recognizing that Lawrence's holding was limited to adult, consensual, noncommercial, private sexual activity.