Ten years after the Supreme Court ruled laws could not prohibit sex between consenting adults, it was still illegal for two consenting adults to engage in sodomy in Virginia—until Tuesday. It took a split decision from a federal appeals court on a gruesome case, but sodomy is finally legal in Virginia, even if holdouts remain in other states where local laws still take what's seen as an anti-gay stance to the highest court's ruling.
A three judge panel on the U.S. Court of Appeals for the Fourth Circuit ruled 2-1 that Virginia's "Crimes Against Nature" anti-sodomy provision, which prohibited anal and oral sex, is unconstitutional. Therefore, the provision has been invalidated. The Supreme Court ruled in the landmark 2003 decision Lawrence vs. Texas any state laws that criminalized sex between two consenting adults were to be invalidated. Apparently Virginia—and 14 other states with anti-sodomy laws on the books—never got that message. But the decision by the appeals court today was praised by groups like the American Civil Liberties Union's Virginia chapter because the law was seen as infringing on the rights of LGBT Virginians. (There remain those other 13 states, including Montana, Kansas, Oklahoma, and Texas, where you're only prohibited from having anal sex if you're gay.)
So while the ruling was seen a civil-rights victory, the case that brought it to the forefront was less than an ideal precedent setter. In 2005, 47-year-old William Scott MacDonald was convicted of trying to solicit a 17-year-old girl for anal sex. She refused and reported him the police. He was charged with a felony according to provisions in the state's Crimes Against Nature law. A state court had previously ruled that Lawrence vs. Texas didn't apply to MacDonald's case, and that he should still be found guilty, because he tried to solicit sex from a minor, which the Supreme Court decision doesn't directly mention. So MacDonald took his case to the federal appeals court, which ruled in his favor, because the Supreme Court law invalidates any and all laws prohibiting sex between two consenting adults.
The inherent grossness of the human-rights victory was not lost on ACLU representative Rebecca Glenberg. She urged the state to adopt clear laws that prohibit any sex between an adult and a minor. "Instead, the legislature should enact narrowly drawn statutes that do not apply to private conduct between consenting adults and define equitably and clearly what sexual conduct with minors is unlawful," she said.
[Note: the image above is from a 2003 protest supporting the Supreme Court's decision.]
This article is from the archive of our partner The Wire.