The issue in Moose is the effect of the Supreme Court’s decision in Lawrence v. Texas. The sodomy statutes at issue in Lawrence punish more conduct than the facts of Lawrence. That prompts an interesting legal question: Does Lawrence strike down all sodomy statutes in all applications, or does Lawrence only disallow the use of sodomy statutes to punish the category of conduct (however defined) at issue in Lawrence? The Fourth Circuit held the former, even under AEDPA, and the Commonwealth of Virginia filed a cert petition arguing that the Supreme Court should review the Fourth Circuit decision.
In her Slate essay, Lithwick presented the petition as part of Virginia AG Ken Cuccinelli’s moral crusade:
Cuccinelli decided to appeal the case to the Supreme Court, arguing that Virginia’s anti-sodomy statute has no constitutional problem, if—as he concedes, and only if—the high court would just interpret the terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds. (Justice Kennedy left the thread of that argument hanging in his majority opinion in Lawrence.) In effect, Cuccinelli’s legal appeal asks the Supreme Court and the lower courts to ignore the clear meaning and intent of the law, to interpret it in a way that advances narrow goals he wants to advance.
Of course, Cuccinelli’s problem at the Supreme Court is that Virginia’s sodomy statute doesn’t mention age, so reading an imaginary age requirement into it is not “interpreting” the statute so much as rewriting it—a freewheeling position normally anathema to Tea Party conservatives like Cuccinelli. Moreover, the Virginia legislature actually tried to rewrite the law to salvage it for narrower purposes after the Lawrence decision, but Cuccinelli helped kill that bill. You can’t really stagger around swinging a huge, unwieldy legal mallet and claiming it’s the only tool you have against pedophilia. Not when you opted to turn down the offer of a scalpel.
. . . It’s hard to tell whether Cuccinelli is now begging federal courts to legislate from the bench because he needs a campaign boost, or because he really does want them to police—on an ongoing, “trust me”—basis, the private sex lives of all Virginians and the sexual conduct of all its teenagers. The first scenario is an example of the sad state of Virginia politics. The second is just plain scary. Either way, begging out-of-touch, elitist, liberal federal courts to make ad hoc decisions about which private sex acts are “unnatural” could not be a less conservative goal.
Walsh’s response is fairly long, but here’s the gist of it (with paragraph breaks added):
It is, of course, fair to criticize a discretionary choice to seek discretionary review, and reasonable people may disagree about whether Virginia should have sought certiorari. But Lithwick’s characterization of the arguments advanced by Virginia in its petition for certiorari is inaccurate and misleading.
Virginia is not asking the Supreme Court to “interpret [Virginia’s] terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds,” as Lithwick puts it. Rather, Virginia is asking the Supreme Court to hold that Lawrence v. Texas invalidated Virginia’s statute only insofar as the statute is applied to criminalize consensual, private, non-commercial, adult conduct of the sort at issue Lawrence. According to Virginia’s petition, that is the view of Lawrence adopted by virtually every other court in the country. And asking the Supreme Court to rein in the Fourth Circuit’s outlier reading hardly amounts to “begging out-of-touch, elitist, liberal federal courts to make ad hoc decisions about which private sex acts are ‘unnatural’.”
I realize that there can be many legitimate ways of characterizing legal arguments. But in this piece, Lithwick trades precision for sensationalism. Moreover, the version of the piece that is up as I write contains seventeen links, but not one of these is to Virginia’s actual legal arguments. At a minimum, Slate should immediately include a link to Virginia’s petition so that its readers can judge for themselves. And Slate should probably also add a link to the Fourth Circuit’s opinion itself. (The closest the piece comes now is a link to a post at Constitutional Law Prof Blog. Happy for them to get the traffic, go read!, but there’s nothing like going straight to the source.)