In his article explaining an Italian court’s treatment of divorce, CockleBur contributor Dan Ortiz said, “Courts often don’t get sex.  We know that.” 

How do we know that? We know because courts continue to spew forth rulings that obfuscate rather than illuminate the government’s constitutional role in policing our bedrooms.

I talk to people of all different walks—from the most liberal lawyers to the most conservative members of my Bible study group. When I tell people about this case and how the state sentenced a man to three years in prison for committing oral sex, the response is always the same: “They still do that?” The second response quickly follows:  “And why would they do that?” People intuitively understand that government simply does not belong in the bedroom, unless its extreme cases like rape or incest. While citizens get it, regrettably courts always do not.

Last week, CockleBur contributor Jacob Huebert filed a petition for writ of certiorari in MacDonald v. Johnson, No. 10-852.

[By way of full disclosure, the Petitioner’s wife contacted me several months ago about assisting her with the Supreme Court filing, and I in turn reached out to Jacob who, fortunately for the MacDonalds, took the case on a pro bono basis.] In the petition, we ask for the Court’s review in part because the Commonwealth of Virginia continues a practice of randomly enforcing its sodomy statue.

William MacDonald was charged with committing oral sex under a general sodomy statute—what I mean by “general” is that the statute does not contain age, marital status or sexual orientation clauses limiting its reach. It applies equally to anyone: married, single, heterosexual or homosexual. While most states with general sodomy statutes still on their books have refused to initiate sodomy prosecutions in the wake of the Court’s 2003 decision in Lawrence v. Texas, Virginia has continued to sporadically prosecute and criminalize the very same act that a large portion of the country commits with regularity.

There are a number of oddities with this case, besides Virginia’s stance that committing oral sex is a felony crime. It is certainly strange that the Virginia Supreme Court (“VSC”) decided to uphold a sodomy statute even though Lawrence invalidated all sodomy statutes seven years ago. But disregarding Supreme Court precedent, especially decisions implicating civil rights, is nothing new for this state. It is, after all, the place that banned interracial marriage well into the twentieth century. What is also surprising is the VSC’s failure to appreciate the logical ramifications of their holding.

MacDonald’s prosecution was no doubt the result of him being over 18 and the oral sex involving two females, ages 16 and 17. The VSC held that Lawrence did not apply to MacDonald’s conduct because the acts involved minors, even though the VSC acknowledged that the age of consent in Virginia is 15 and that MacDonald had not been charged under any existing statutory rape statute. The practical effect of the VSC’s holding is that although people over the age of 15 can consent to sex, they have no right of sexual privacy in actually performing sex. To put it differently, Virginia could charge anyone over the age of 15 but less than 18 with a felony sodomy charge because the right to privacy in Lawrence applies only to those people the state labels “adult” for voting purposes. Such a ruling is scary for teens and their parents living in Virginia, makes no sense and serves little purpose other than allowing the state to continue to arbitrarily apply an outdated statute.

It is for this very reason that the resolution of the due process question in MacDonald could potentially affect far more than just MacDonald himself—an argument we made in the cert petition and one hopefully the Court will agree with.

Special thanks to Jacob for taking the case on short notice and writing a stellar petition, and to my wife Ann Marie and Jacob’s fiancé, Allison Harnack, for assisting us with research.