In MacDonald v. Moose, 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. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.
The panel majority misapplied the deferential standard of review required by Congress for federal habeas review of state court convictions. And the court's analysis further muddled the already confused doctrine surrounding facial and as-applied challenges. More fundamentally, the panel majority's concern about the supposed need to engage in a "drastic" "judicial reformation" of Virginia's law to render it compatible with Lawrence was simply misplaced. 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.
Kevin C. Walsh, Observations on MacDonald v. Moose, 65 S.C.L. REV. 951 (2014).
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