PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM SCOTT MACDONALD, 

Petitioner-Appellant,

v.

TIM MOOSE,

Respondent-Appellee,

and

KEITH HOLDER, Probation Officer,

Respondent.  No. 11-7427

DEAN AND PROFESSOR ERWIN

CHEMERINKSY; AMERICAN CIVIL

LIBERTIES UNION OF VIRGINIA,

INCORPORATED; LAMBDA LEGAL

DEFENSE AND EDUCATION FUND,

INCORPORATED,

Amici Supporting Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(1:09-cv-01047-GBL-TRJ)

Argued: October 24, 2012

Decided: March 12, 2013

Before MOTZ, KING, and DIAZ, Circuit Judges.
Reversed and remanded by published opinion. Judge King

wrote the majority opinion, in which Judge Motz joined.

Judge Diaz wrote a dissenting opinion.

COUNSEL

ARGUED: Benjamin E. Rosenberg, DECHERT, LLP, New

York, New York, for Appellant. Robert H. Anderson, III,

OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia, for Appellee. ON BRIEF: Joshua D. N.

Hess, DECHERT, LLP, San Francisco, California, for Appellant. Kenneth T. Cuccinelli, II, Attorney General of Virginia,

Richmond, Virginia, for Appellee. Rebecca K. Glenberg,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA

FOUNDATION, INC., Richmond, Virginia; Susan L. Sommer, Gregory R. Nevins, LAMBDA LEGAL DEFENSE

AND EDUCATION FUND, INC., New York, New York, for

Amici Supporting Appellant.

OPINION

KING, Circuit Judge:

In 2005, William Scott MacDonald was convicted after a

bench trial in the Circuit Court of the City of Colonial

Heights, Virginia, of two offenses: the misdemeanor offense

of contributing to the delinquency of a minor, in contravention of Virginia Code section 18.2-371; and the felony offense

of violating the Commonwealth’s criminal solicitation statute,

found in section 18.2-29. The criminal solicitation statute provides that "[a]ny person age eighteen or older who commands, entreats, or otherwise attempts to persuade another

person under age eighteen to commit [a predicate felony, i.e.,]

a felony other than murder," shall be guilty of a felony. Va.

Code § 18.2-29.

2 MACDONALD v. MOOSE
The predicate felony for MacDonald’s criminal solicitation

offense was the Commonwealth’s "Crimes Against Nature"

statute, which criminalizes, inter alia, "carnal knowledge" by

one person of another by the anus or mouth, an act commonly

known as sodomy. Va. Code § 18.2-361(A). MacDonald was

sentenced to ten years in prison (with nine years suspended)

for criminal solicitation, plus twelve months on the misdemeanor offense. Upon release, MacDonald was placed on probation and compelled to register as a sex offender.

In 2009, after failing to obtain relief on direct appeal and

in state postconviction proceedings, MacDonald filed a 28

U.S.C. § 2254 petition in the Eastern District of Virginia.

MacDonald alleged, among other things, that his criminal

solicitation conviction, insofar as it was predicated on the

anti-sodomy provision of Virginia Code section 18.2-361(A),

contravened the Constitution. More specifically, MacDonald

contended that the predicate anti-sodomy provision had been

rendered invalid by the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003) (striking down Texas

anti-sodomy statute as facially violative of Fourteenth

Amendment’s Due Process Clause). The district court rejected

MacDonald’s constitutional challenges to section 18.2-361(A)

and dismissed his § 2254 petition. See MacDonald v. Holder,

No. 1:09-cv-01047, 2011 WL 4498973 (E.D. Va. Sept. 26,

2011) (the "Opinion").1

On October 24, 2011, MacDonald filed a timely notice of

appeal. He thereafter requested the issuance of a certificate of

appealability ("COA") from this Court. See 28 U.S.C.

§ 2253(c)(1)(A). We granted his COA request on April 17,

2012, identifying the issue for appeal as whether Virginia

Code section 18.2-361(A) is unconstitutional either facially or

1The district court’s unpublished Opinion is found at J.A. 400-12. (Citations herein to "J.A. ____" refer to the contents of the Joint Appendix filed

by the parties in this appeal. Citations to "S.J.A. ____" refer to the contents of the Supplemental Joint Appendix.) 

MACDONALD v. MOOSE 3
as applied in MacDonald’s case, in light of the Supreme

Court’s Lawrence decision. The COA circumscribes this

appeal to an examination of the constitutionality of a single

aspect of section 18.2-361(A), which provides: 

If any person . . . carnally knows any male or female

person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she

shall be guilty of a [felony.]

We herein use the term "anti-sodomy provision" to refer to

the foregoing portion of section 18.2-361(A).2 As explained

below, we are constrained to vacate the district court’s judgment and remand for an award of habeas corpus relief on the

ground that the anti-sodomy provision facially violates the

Due Process Clause of the Fourteenth Amendment.

I.

MacDonald was forty-seven years old at the time of the

events giving rise to his state court convictions.3 On the evening of September 23, 2004, MacDonald telephoned

seventeen-year-old Amanda Johnson, a young woman he had

met through a mutual acquaintance. MacDonald and Johnson

arranged to meet that night at a Home Depot parking lot in

Colonial Heights. When they arrived at the parking lot, MacDonald got into the backseat of Johnson’s vehicle and they

drove to the nearby home of Johnson’s grandmother. Johnson

went into her grandmother’s residence to retrieve a book, and

when she returned to the vehicle MacDonald asked her to

2The remainder of Virginia Code section 18.2-361(A) prohibits bestiality by criminalizing the carnal knowledge "in any manner [of] any

brute animal." The constitutionality of the bestiality portion of subsection

(A) is not challenged in this proceeding nor affected by today’s decision.

3Our account of the facts is largely derived from the evidence presented

at MacDonald’s bench trial in state court. The facts are recited in the light

most favorable to the Commonwealth, as the prevailing party in the trial.

See Roach v. Angelone, 176 F.3d 210, 219 (4th Cir. 1999). 

4 MACDONALD v. MOOSE
"suck his dick." J.A. 51. MacDonald also suggested that they

have sex in a shed in Johnson’s grandmother’s yard. Johnson

declined both proposals, however, and she drove MacDonald

back to the Home Depot parking lot. 

Nearly three months later, in December 2004, MacDonald

filed a report with the Colonial Heights police maintaining

that Johnson had abducted and sexually assaulted him. MacDonald thereafter met with and was interviewed by Detective

Stephanie Early. MacDonald advised Early that, sometime in

September, Johnson had paged him and asked that he meet

her in the Home Depot parking lot. MacDonald stated that,

once they met, he got into Johnson’s car and she drove them

away. When MacDonald asked Johnson where she was going,

she did not respond. MacDonald told her, "[T]his has got to

stop, lose my number, I’m married, don’t call me anymore."

J.A. 59. MacDonald also advised Detective Early that he and

Johnson stopped at a location on Canterbury Lane in Colonial

Heights, and "at that point Ms. Johnson forcibly removed his

penis from his pants and performed oral sex against his will."

Id. MacDonald acknowledged that he knew Johnson was only

seventeen years old.

Soon thereafter, Detective Early met with and interviewed

Johnson, who gave a sharply conflicting account of what had

occurred. Crediting Johnson’s version of the events, Early

secured three arrest warrants for MacDonald, charging: (1)

the felony criminal solicitation offense; (2) the misdemeanor

offense of contributing to the delinquency of a minor; and (3)

the misdemeanor offense of "knowingly giv[ing] a false

report as to the commission of a crime to the Police with the

intent to mislead," in violation of Virginia Code section 18.2-

461. See J.A. 4-6. MacDonald was arrested on January 25,

2005. He was prosecuted in the Juvenile and Domestic Relations Court of Colonial Heights on the false police report

charge, and in the circuit court on the other two charges.

MACDONALD v. MOOSE 5
On May 25, 2005, MacDonald pleaded guilty to filing a

false police report, in connection with his false complaint to

Detective Early. As a result, he was sentenced to twelve

months in jail, with six months suspended. On June 7, 2005,

MacDonald moved in the circuit court to dismiss the criminal

solicitation charge on the ground that the predicate felony —

the anti-sodomy provision — violated his due process rights.

Relying on Lawrence v. Texas, MacDonald asserted that the

Supreme Court had invalidated all state statutes that prohibit

"consensual sodomy between individuals with the capacity to

consent." J.A. 24. A bench trial was conducted in the circuit

court on July 12, 2005, where Johnson, Early, MacDonald,

and MacDonald’s wife testified.4 After the trial had concluded, on July 25, 2005, the circuit court denied the motion

to dismiss, ruling that the anti-sodomy provision was not

being unconstitutionally applied to MacDonald. The following day, the court found MacDonald guilty of solicitation to

commit a felony (i.e., the anti-sodomy provision), and

deferred ruling on the misdemeanor offense of contributing to

the delinquency of a minor. On August 2, 2005, the circuit

court convicted MacDonald of the misdemeanor offense, and

it sentenced him on both offenses.

II.

A.

MacDonald appealed his circuit court convictions to the

Court of Appeals of Virginia. In doing so, he argued that, in

light of Lawrence v. Texas, the anti-sodomy provision was

facially invalid "insofar as it relates to consensual sodomy

between unrelated individuals who have reached the age of

consent," by infringing on the liberty interests protected by

4At his bench trial, MacDonald testified consistently with his initial version of the events of September 23, 2004, under which he had been

abducted and sexually assaulted by Johnson. By its verdict, the trial court

rejected that testimony. 

6 MACDONALD v. MOOSE
"the Due Process Clause of the Fourteenth Amendment."

S.J.A. 14. MacDonald thus maintained that the anti-sodomy

provision could not serve as a predicate felony for the criminal solicitation offense. 

In January 2007, the state court of appeals ruled that MacDonald lacked "standing to assert [the facial due process

claim]" and dismissed his appeal. See MacDonald v. Commonwealth, No. 1939-05-2, 2007 WL 43635 (Va. Ct. App.

Jan. 9, 2007). In that regard, the court relied on its ruling in

McDonald v. Commonwealth, 630 S.E.2d 754 (Va. Ct. App.

2006).5 The previous appeal related to other criminal proceedings involving petitioner MacDonald, specifically his prior

convictions on four counts of violating Virginia’s antisodomy provision, twice each with two young women who

were sixteen and seventeen years old. There, the court of

appeals had rejected MacDonald’s Fourteenth Amendment

due process claims, holding that, because his offenses

involved minors, his as-applied claim failed and he thus

lacked standing to pursue a facial challenge. See McDonald,

630 S.E.2d at 756 (citing Ulster Cnty. v. Allen, 442 U.S. 140,

154-55 (1979) ("As a general rule, if there is no constitutional

defect in the application of the statute to a litigant, he does not

have standing to argue that it would be unconstitutional if

applied to third parties in hypothetical situations.")).6 In the

5Though the appellant’s last name in the earlier appeal is spelled differently, it is clear that both appeals involved the same individual, known

here as petitioner William Scott MacDonald. 

6After the state court of appeals affirmed his earlier sodomy convictions, MacDonald sought review in the Supreme Court of Virginia. See

McDonald v. Commonwealth, 645 S.E.2d 918 (Va. 2007). MacDonald’s

efforts were to no avail, however, as the state supreme court rejected MacDonald’s as-applied challenge. The court reasoned that the anti-sodomy

provision was constitutional as applied because MacDonald’s victims

were minors, and it concluded that his facial claim had not been preserved

in the trial court. See id. at 921, 924. Thereafter, MacDonald pursued his

due process contentions in federal habeas proceedings, but the district

court dismissed his 28 U.S.C. § 2254 petition. See MacDonald v. Johnson,

No. 1:08-cv-00781, 2009 WL 3254444 (E.D. Va. Oct. 9, 2009). Our Court

declined to issue a COA on June 24, 2010. See MacDonald v. Johnson,

384 F. App’x 273 (4th Cir. 2010). 

MACDONALD v. MOOSE 7
present case, on September 7, 2007, the Supreme Court of

Virginia summarily denied MacDonald’s pro se petition for

appeal, and then, on November 9, 2007, denied his petition

for rehearing.7

B.

On September 16, 2009, MacDonald, again proceeding pro

se, filed his 28 U.S.C. § 2254 petition in the Eastern District

of Virginia. Therein, MacDonald theorized that his conviction

was "in violation of the ex post facto guarantee of the U.S.

Constitution because [the anti-sodomy provision] is Facially

Unconstitutional and also because it carries punishments that

are in direct conflict with Equal Protection of the Law." J.A.

292. MacDonald maintained, as he had at each previous

opportunity, that the Lawrence decision invalidated all state

anti-sodomy provisions, and that the Supreme Court "acted in

accordance with numerous prior precedents that struck down

laws impinging upon the liberty guarantees of the Fifth and

Fourteenth Amendments." Id. at 301. The district court, "[i]n

deference to petitioner’s pro se status," trifurcated MacDonald’s constitutional challenges into (1) an ex post facto claim;

(2) a facial due process attack; and (3) an as-applied due process challenge to the anti-sodomy provision. See Opinion 5.8

7MacDonald subsequently sought state postconviction relief, raising

claims of ineffective assistance of counsel and violations of his ex post

facto guaranties. The state supreme court dismissed MacDonald’s petition

for appeal, however, ruling, inter alia, that his ex post facto claim was

"barred because this non-jurisdictional issue could have been raised at trial

and on direct appeal and, thus, is not cognizable in a petition for a writ of

habeas corpus." MacDonald v. Dir. of the Dep’t of Corr., No. 348987, slip

op. at 4 (Va. Oct. 21, 2008) (citing Slayton v. Parrigan, 205 S.E.2d 680,

682 (Va. 1974)). 

8The Opinion does not specify that MacDonald’s as-applied challenge

was based on the Due Process Clause of the Fourteenth Amendment. The

district court recognized, however, that MacDonald relied on the Lawrence decision for his pursuit of this claim, and Lawrence was decided on

Fourteenth Amendment due process grounds. 

8 MACDONALD v. MOOSE
In its Opinion, the district court dismissed MacDonald’s ex

post facto claim "to the extent that [it] differs from the facial

attack," as procedurally barred under the rule of Slayton v.

Parrigan, 205 S.E.2d 680, 682 (Va. 1974). See Opinion 6; see

also supra note 6. Proceeding to MacDonald’s facial due process challenge, the district court employed the deferential

§ 2254(d) standard of review to withhold relief. See infra Part

III. The court concluded that the Virginia Court of Appeals

had reasonably applied Ulster County to decide that MacDonald lacked standing to pursue such a claim because his conduct was not constitutionally protected. See Opinion 8.

Finally, determining that the anti-sodomy provision was constitutional as applied to MacDonald, the district court

endorsed the state court’s rationale that, because the Commonwealth had properly treated seventeen-year-olds as children, and because the Lawrence decision had stressed that

"[t]he present case does not involve minors," 539 U.S. at 578,

the anti-sodomy provision could constitutionally serve as a

predicate offense under the solicitation statute. See Opinion 8-

9. The district court further explained,

The Court of Appeals of Virginia’s determination is

based on clearly established federal law. Virginia

considers persons aged sixteen and seventeen to be

children, and the Supreme Court in Lawrence explicitly stated that the ruling did not apply to sexual acts

involving children. Thus, the holding that Va. Code

§ 18.2-361 is not unconstitutional as applied to MacDonald is not contrary to, or an unreasonabl[e] application of, federal law.

Id. at 9 (citations omitted).

III.

The Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA") governs a federal court’s handling of a 28 U.S.C.

§ 2254 petition filed by a state prisoner. We review de novo

MACDONALD v. MOOSE 9
a district court’s denial of a § 2254 petition. See Deyton v.

Keller, 682 F.3d 340, 343 (4th Cir. 2012). Pursuant to

AEDPA, however, when a habeas petitioner’s constitutional

claim has been "adjudicated on the merits in State court proceedings," we may not grant relief unless the state court’s

adjudication "resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States," or "resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.

§ 2254(d).

IV.

A.

In this appeal, MacDonald pursues both facial and asapplied due process challenges to the anti-sodomy provision.

He contends not only that the anti-sodomy provision was

unconstitutional as applied to him, but also that Lawrence v.

Texas compels the facial invalidation of the anti-sodomy provision under the Fourteenth Amendment.9

 Even though, as the

Supreme Court of Virginia emphasized, Lawrence did not

involve minors, MacDonald argues that "[t]he Lawrence

Court did not preserve those applications of Texas’s [sodomy]

law to the extent that it would apply to ‘minors’ or in any

other circumstance. It invalidated the law in toto." Br. of

Appellant 10. MacDonald maintains that he possesses standing to pursue his facial challenge under the Due Process

Clause because the anti-sodomy provision was rendered

unconstitutional by Lawrence. He relies on established

Supreme Court authority for the proposition that standing

exists

9MacDonald also seeks to invalidate his criminal solicitation conviction

on equal protection and ex post facto grounds. Inasmuch as we conclude

that MacDonald is entitled to relief on his primary due process claim, we

need not consider the alternative bases he has asserted. 

10 MACDONALD v. MOOSE
"where the statute in question has already been

declared unconstitutional in the vast majority of its

intended applications, and it can fairly be said that it

was not intended to stand as valid, on the basis of

fortuitous circumstances, only in a fraction of cases

it was originally designed to cover." 

Br. of Appellant 14 (quoting United States v. Raines, 362 U.S.

17, 23 (1960)).

MacDonald next asserts that the Virginia courts have

impermissibly interpreted Lawrence as authorizing them to

recast the anti-sodomy provision — which by its terms bans

all sodomy offenses — and apply the provision solely to sodomy offenses that involve minors. In explaining his position,

MacDonald contends that 

[t]he courts’ re-writing of the [anti-sodomy provision] wrongly "substitute[s] the judicial for the legislative department of the government" and creates a

"dangerous" precedent to encourage legislatures to

"‘set a net large enough to catch all possible offenders, and leave it to the courts to step inside’ to

announce to whom the statute may be applied."

Br. of Appellant at 17-18 (quoting Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 330 (2006)). MacDonald

further argues that the Virginia courts’ rewriting of the antisodomy provision was contrary to the intent of Virginia’s

General Assembly, because the judicially rewritten statute is

at odds with other Virginia criminal statutes regulating the

sexual conduct of persons over eighteen with younger persons. Cf. Va. Code § 18.2-63 (prohibiting carnal knowledge

of a child between thirteen and fifteen); Va. Code § 18.2-370

(prohibiting persons over eighteen from certain "indecent"

acts with children under fifteen, including soliciting sodomy).

More particularly, Virginia Code section 18.2-370(A) prohibits any person over eighteen from proposing certain sexual

MACDONALD v. MOOSE 11
conduct (including sodomy) to "any child under the age of 15

years." The foregoing provision, MacDonald maintains, was

plainly not intended to criminalize activity with minors fifteen

or older. He thus contends that Virginia’s judicial rewriting of

the anti-sodomy provision, rendering it applicable to the solicitation of sodomy from a minor under eighteen, runs afoul of

the age specification ("any child under the age of 15 years")

embedded in section 18.2-370(A). MacDonald further asserts

that the judicial redrafting of the anti-sodomy provision by the

Virginia courts contravened his due process rights because he

did not have — and could not have had — fair notice that the

anti-sodomy provision would be construed in a way that renders it applicable to his conduct.

The Commonwealth responds to MacDonald’s contentions

by maintaining that Lawrence did not "establish the unconstitutionality of solicitation statutes generally . . . , or MacDonald’s solicitation in particular." Br. of Appellee 8. Positing

that Lawrence simply does not apply to statutes that criminalize sodomy involving a minor, Virginia emphasizes the district court’s determination that the anti-sodomy provision is

constitutional as applied to MacDonald. The Commonwealth

then asserts that MacDonald lacks standing to pursue a facial

challenge to the anti-sodomy provision under the Supreme

Court’s Ulster County decision, because the provision can be

constitutionally applied in various circumstances, including

those underlying this appeal.10

10The Commonwealth also contends that the resolution of MacDonald’s

earlier case relating to his 2005 sodomy convictions — particularly our

2010 denial of a COA, see supra note 6 — has become the law of the case,

or, alternatively, is collaterally estopped from relitigation. We disagree.

First, the doctrine of law of the case restricts a court to legal decisions it

has made on the same issues in the same case. See Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 815-16 (1988). As the Commonwealth admits, this case is not the same as MacDonald’s earlier case, and

thus, the law of the case doctrine does not apply. Second, collateral estoppel, which might preclude relitigation of an issue, is an affirmative defense

that the Commonwealth waived by not first raising it in the district court.

12 MACDONALD v. MOOSE
B.

1.

Put succinctly, the Ulster County decision does not operate

to deny standing for MacDonald to pursue a facial due process challenge to the anti-sodomy provision. Under the Article III case-or-controversy requirement, a litigant must assert

a concrete interest of his own. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992) (explaining that Article

III requires (1) that the plaintiff has suffered an "invasion of

a legally protected interest," (2) that there is a causal connection between the injury "fairly traceable" to the challenged

action; and (3) that it is likely that the injury will be "redressed by a favorable decision" (citations omitted)). The Virginia courts ruled that MacDonald had not asserted his own

concrete interest in his facial challenge, but rather was pursuing the interests of third parties, in that the anti-sodomy provision is constitutional as applied to him. Under that theory,

MacDonald could only pursue a facial challenge to the antisodomy provision as it applies to others. This determination

of the jurisdictional predicate for standing to sue relied

entirely on an unfavorable legal resolution of the merits of

MacDonald’s as-applied constitutional claim. In turn, our resolution of MacDonald’s as-applied claim informs — at least

under the theories propounded by the state and district courts

See Fed. R. Civ. P. 8(c). Finally, even if collateral estoppel was not

waived, that doctrine requires that the issue be "actually determined and

necessarily decided in prior litigation in which the party against whom

collateral estoppel is asserted had a full and fair opportunity to litigate."

Va. Hosp. Ass’n. v. Baliles, 830 F.2d 1308, 1311 (4th Cir. 1987). Our

denial of a COA in the earlier case — in which MacDonald was proceeding pro se — is not precedent here, does not constitute a decision on the

merits of MacDonald’s constitutional claims, and did not afford MacDonald a full and fair opportunity to litigate. See Miller-El v. Cockrell, 537

U.S. 322, 331 (2003) (recognizing that "a COA ruling is not the occasion

for a ruling on the merit of petitioner’s claim"). 

MACDONALD v. MOOSE 13
— whether MacDonald possesses standing to assert a facial

challenge to the anti-sodomy provision.

In Ulster County, the Supreme Court assessed a habeas

petition filed by three state prisoners, challenging a New York

statute that permitted a jury to presume that two firearms

found in the vehicle in which they were riding had been

jointly possessed by them all. The Second Circuit declared the

statute facially unconstitutional, emphasizing its broad reach

in potentially applying the presumption to vehicle occupants

"‘who may not know they are riding with a gun’" or "‘who

may be aware of the presence of the gun but not permitted

access to it.’" 442 U.S. at 146 (quoting Allen v. Cnty. Court,

Ulster Cnty., 568 F.2d 998, 1007 (2d Cir. 1977)). 

The Supreme Court reversed the court of appeals, however,

ruling that the Second Circuit had unnecessarily addressed the

issue of the statute’s facial invalidity. According to the Court,

the presumption was constitutionally applied to the three

Ulster County petitioners, in that the firearms had been discovered in a handbag belonging to the vehicle’s fourth occupant — a sixteen-year-old female. The Court explained the

applicable principle as this:

A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse

impact on his own rights. As a general rule, if there

is no constitutional defect in the application of the

statute to a litigant, he does not have standing to

argue that it would be unconstitutional if applied to

third parties in hypothetical situations.

Ulster Cnty., 442 U.S. at 154-55. The Court’s ruling on standing to pursue a facial challenge, as in this case, depended on

an unfavorable threshold resolution of an as-applied challenge. If the statute had been unconstitutionally applied to the

petitioners in Ulster County, their own rights would have been

14 MACDONALD v. MOOSE
adversely affected, and, therefore, reaching the merits of their

facial challenge may have been appropriate.

Because, as we explain below, the anti-sodomy provision

is unconstitutional when applied to any person, the state court

of appeals and the district court were incorrect in deeming the

anti-sodomy provision to be constitutional as applied to MacDonald. MacDonald is thus asserting his own concrete injury,

and the state court’s standing determination, as endorsed by

the district court, was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States.11

2.

In Lawrence, the Supreme Court plainly held that statutes

criminalizing private acts of consensual sodomy between

adults are inconsistent with the protections of liberty assured

by the Due Process Clause of the Fourteenth Amendment. 539

U.S. at 578. The statute declared invalid in Lawrence provided that "[a] person commits an offense if he engages in

deviate sexual intercourse with another individual of the same

sex." Id. at 563. The conduct for which the Lawrence defendants were prosecuted qualified as "deviate sexual intercourse," in that it amounted to "contact between any part of

the genitals of one person and the mouth or anus of another

person," that is, sodomy. Id. The Supreme Court granted cer11In our resolution of the standing issue, we are, of course, necessarily

concluding that the Virginia courts wrongly decided MacDonald’s asapplied challenge to the anti-sodomy provision. As explained below, however, we see the provision as not only unconstitutional as applied to MacDonald, but as facially invalid in light of Lawrence v. Texas, and we

resolve the case on those grounds alone. See Richard H. Fallon, Jr.,

As–Applied Challenges and Third–Party Standing, 113 Harv. L. Rev.

1321, 1336–39 (2000) (recognizing that a statute’s application will "sometimes unmistakably, even necessarily, yield the conclusion that a statute is

invalid, not merely as applied to the facts, but more generally or even in

whole"). 

MACDONALD v. MOOSE 15
tiorari on three issues: (1) whether the criminalization of

strictly homosexual sodomy violated the Equal Protection

Clause of the Fourteenth Amendment; (2) more broadly,

whether criminalization of sodomy per se between consenting

adults contravened the fundamental liberty and privacy interests protected by the Fourteenth Amendment’s Due Process

Clause; and (3) whether Bowers v. Hardwick, 478 U.S. 186

(1986), which upheld against facial challenge a Georgia statute criminalizing all sodomy, should be overruled.

On the third question, relating to Bowers v. Hardwick, the

Court readily concluded that "[t]he rationale of Bowers does

not withstand careful analysis . . . . Bowers was not correct

when it was decided, and it is not correct today. . . . Bowers

v. Hardwick should be and now is overruled." Lawrence, 539

U.S. at 577-78.12 Though acknowledging the equal protection

argument as "tenable," the Court premised its constitutional

holding on the Due Process Clause of the Fourteenth Amendment, surmising that if it were to invalidate the statute "under

the Equal Protection Clause[,] some might question whether

a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex

participants." Id. at 574-75 (emphasis added). The Court

underscored that, although the conduct proscribed by the

Texas statute might be sincerely condemned by many as

immoral, "[t]hese considerations do not answer the question

before us . . . . The issue is whether the majority may use the

power of the State to enforce these views on the whole society

through operation of the criminal law." Id. at 571. The Lawrence Court thus recognized that the facial due process chal12The Georgia statute upheld in Bowers, and deemed unconstitutional

by the Supreme Court in Lawrence, was strikingly similar to the antisodomy provision. It provided, in pertinent part, as follows: 

"A person commits the offense of sodomy when he performs or

submits to any sexual act involving the sex organs of one person

and the mouth or anus of another . . . ." 

Bowers, 478 U.S. at 188 n.1 (quoting Ga. Code § 16-6-2(a) (1984)). 

16 MACDONALD v. MOOSE
lenge in Bowers was wrongly decided. Because the invalid

Georgia statute in Bowers is materially indistinguishable from

the anti-sodomy provision being challenged here, the latter

provision likewise does not survive the Lawrence decision.13

The Commonwealth’s efforts to diminish the pertinence of

Lawrence in connection with MacDonald’s challenge to the

anti-sodomy provision — an enactment in no way dissimilar

to the Texas and Georgia statutes deemed unconstitutional by

the Supreme Court — runs counter to Martin v. Ziherl, 607

S.E.2d 367 (Va. 2005). In that case, the Supreme Court of

Virginia evaluated the constitutionality of a state statute having nothing to do with sodomy, but instead outlawing ordinary sexual intercourse between unmarried persons. The state

supreme court nonetheless acknowledged that Lawrence was

sufficiently applicable to require the statute’s invalidation. 

13Our good colleague in dissent accords controlling weight to a single

instance of word choice in Lawrence, seizing upon Justice Kennedy’s

observation that the "case" then before the Court did not involve minors,

rather than noting that the underlying "statute" failed to target minors specifically. See post at 25-26. Justice Kennedy could have accurately used

both words interchangeably, as could have Justice White in Bowers, had

he also chosen to write concerning what the dispute — or litigation, or

matter, or issue, or case, or statute — was not about. The anti-sodomy provision in this case, being indistinguishable for all practical purposes from

the statute that we now know should have been negated in Bowers, also

does not involve minors. That is precisely why, in conformance with

Ayotte, the provision cannot be saved through superhuman efforts. See

infra at 20-22. 

The dissent’s finely honed distinction that, unlike Lawrence and Bowers, this "case" involves minors, is made possible solely by the Commonwealth’s decision to institute prosecution of a man who loathsomely

solicited an underage female to commit an act that is not, at the moment,

a crime in Virginia. The Commonwealth may as well have charged MacDonald for telephoning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot. The legal arm of

the Commonwealth cannot simply wave a magic wand and decree by fiat

conduct as criminal, in usurpation of the powers properly reserved to the

elected representatives of the people. 

MACDONALD v. MOOSE 17
The Martin decision reversed the trial court’s judgment

against the plaintiff, who sought damages because the defendant had infected her with herpes. The defendant had

demurred to Martin’s motion for judgment, pointing out that

Virginia law barred tort recovery for injuries sustained while

participating in an illegal activity. In its ruling, the state

supreme court concluded that there was "no relevant distinction between the circumstances in Lawrence" and those in

Martin, recognizing that, "but for the nature of the sexual act,

the provisions of [the challenged statute] are identical to those

of the Texas statute which Lawrence determined to be unconstitutional." Martin, 607 S.E.2d at 370 & n*.14 The antisodomy provision, of course, prohibits the same sexual act

targeted by the Texas statute that failed constitutional muster

in Lawrence.

Although both parties in the Martin case were adults, there

is no valid reason why the logic of that ruling should not have

applied with equal force to the ruling of the Court of Appeals

of Virginia in MacDonald’s case. It is not sufficient that the

Martin plaintiff was doubtlessly more deserving of the court’s

sympathy than MacDonald. True enough, the Supreme Court

implied in Lawrence that a state could, consistently with the

Constitution, criminalize sodomy between an adult and a

minor. See Lawrence, 539 U.S. at 572 (documenting "emerging awareness that liberty gives substantial protection to adult

persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)); id. at 573 (pointing

out that, in thirteen states where sodomy was yet proscribed,

"there is a pattern of nonenforcement with respect to consenting adults acting in private" (emphasis added)); id. at 578

14It is worth noting that the Martin court rejected as waived the defendant’s argument that the plaintiff lacked standing to contest the statute’s

constitutionality (in that she was unlikely to be prosecuted), but nonetheless assured itself that its ruling did not amount to an advisory opinion,

inasmuch as "the Court’s decision on the constitutionality of [the challenged statute] will determine Martin’s right to pursue her tort claim for

damages." 607 S.E.2d at 369. 

18 MACDONALD v. MOOSE
("The present case does not involve minors. It does not

involve persons who might be injured or coerced or who are

situated in relationships where consent might not easily be

refused. It does not involve public conduct or prostitution."

(emphasis added)). The Court’s ruminations concerning the

circumstances under which a state might permissibly outlaw

sodomy, however, no doubt contemplated deliberate action by

the people’s representatives, rather than by the judiciary.

Recently, we had occasion to consider a facial challenge to

a much different statute, but the analysis in that case informs

the issue presented here. See United States v. Moore, 666 F.3d

313 (4th Cir. 2012). Moore, who had been convicted under 18

U.S.C. § 922(g) for being a felon in possession of a firearm,

asserted a facial challenge to § 922(g) under the Second

Amendment and the Supreme Court’s decision in District of

Columbia v. Heller, 554 U.S. 570 (2008).15 We explained that,

"[u]nder the well recognized standard for assessing a facial

challenge to the constitutionality of a statute, the Supreme

Court has long declared that a statute cannot be held unconstitutional if it has constitutional application." Moore, 666 F.3d

at 318 (citations omitted). Moore contended that the Supreme

Court’s decision in Heller, which struck down the District of

Columbia’s general prohibition on the possession of handguns, rendered § 922(g)’s firearm restriction violative of the

Second Amendment. The Heller Court took care to observe

however, that certain prohibitions on handgun possession,

such as the possession of firearms by felons, are "presumptively lawful." 554 U.S. at 627 & n.26. Seizing upon that language, we readily rejected Moore’s Second Amendment facial

challenge to § 922(g).

The Lawrence Court, as in Heller, struck down a specific

15Section 922(g) provides, in pertinent part, that "[i]t shall be unlawful

for any person . . . who has been convicted in any court of[ ] a crime punishable for a term exceeding one year . . . to possess . . . any firearm or

ammunition." 

MACDONALD v. MOOSE 19
statute as unconstitutional while reserving judgment on more

carefully crafted enactments yet to be challenged. The salient

difference between § 922(g) and the anti-sodomy provision,

however, is that § 922(g), in a relatively narrow fashion, regulates the possession of firearms by felons, while the antisodomy provision, like the statute in Lawrence, applies without limits. Thus, although the Virginia General Assembly

might be entitled to enact a statute specifically outlawing sodomy between an adult and an older minor, it has not seen fit

to do so.16 The anti-sodomy provision does not mention the

word "minor," nor does it remotely suggest that the regulation

of sexual relations between adults and children had anything

to do with its enactment. In these circumstances, a judicial

reformation of the anti-sodomy provision to criminalize MacDonald’s conduct in this case, and to do so in harmony with

Lawrence, requires a drastic action that runs afoul of the

Supreme Court’s decision in Ayotte v. Planned Parenthood of

Northern New England, 546 U.S. 320 (2006). 

In Ayotte, the Court recognized the important principle that,

"[g]enerally speaking, when confronting a constitutional flaw

in a statute, we try to limit the solution to the problem. We

prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force,

or to sever its problematic portions while leaving the remainder intact." 546 U.S. at 328-29. The Court also acknowledged,

however, the dangers of too much meddling:

[M]indful that our constitutional mandate and institutional competence are limited, we restrain ourselves from rewriting state law to conform it to

constitutional requirements even as we strive to salvage it . . . . [M]aking distinctions in a murky consti16As explained heretofore, it is a felony in Virginia for an adult to solicit

sodomy from "any child under the age of 15 years." Va. Code § 18.2-

370(A). Because Johnson was seventeen years old when she was solicited

by MacDonald, he could not be charged with violating that statute. 

20 MACDONALD v. MOOSE
tutional context, or where line-drawing is inherently

complex, may call for a far more serious invasion of

the legislative domain then we ought to undertake

. . . . All the while, we are wary of legislatures who

would rely on our intervention, for it would certainly

be dangerous if the legislature could set a net large

enough to catch all possible offenders, and leave it

to the courts to step inside to announce to whom the

statute may be applied. This would, to some extent,

substitute the judicial for the legislative department

of the government.

Id. at 329-30 (citations, alterations, and internal quotation

marks omitted); see also Reno v. Am. Civil Liberties Union,

521 U.S. 844, 884-85 (1997) (explaining, in upholding facial

constitutional challenge, that "[t]his Court ‘will not rewrite

. . . law to conform it to constitutional requirements’" (quoting

Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397

(1988))); United States v. Nat’l Treasury Emp. Union, 513

U.S. 454, 479 (1995) (recognizing "[o]ur obligation to avoid

judicial legislation"); Aptheker v. Sec’y of State, 378 U.S. 500,

515 (1964) (warning against judicial rewriting of statute to

"save it against constitutional attack").

It is accurate for us to observe that facial constitutional

challenges to state statutes are generally disfavored, see Wash.

State Grange v. Wash. State Republican Party, 552 U.S. 442,

450-51 (2008), and the general rule when a defect appears is

"partial, rather than facial, invalidation," see Ayotte, 546 U.S.

at 329. We are confident, however, that we adhere to the

Supreme Court’s holding in Lawrence by concluding that the

anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.17

17The matter before us evidences a rather plain example of state action

that is flatly contrary to controlling Supreme Court precedent, and therefore cannot stand. The restraints of AEDPA do not preclude federal intervention in these relatively infrequent instances where the petitioner’s right

MACDONALD v. MOOSE 21
A consequence of the Ayotte decision could be that a statute

closely related to the anti-sodomy provision — for example,

Virginia Code section 18.2-361(B), which criminalizes incestuous sodomy involving both minors and adults — might well

survive review under Lawrence, as may that part of section

18.2-361(A) that outlaws bestiality. See supra note 2. The

anti-sodomy provision itself, however, which served as the

basis for MacDonald’s criminal solicitation conviction, cannot be squared with Lawrence without the sort of judicial

intervention that the Supreme Court condemned in Ayotte. 

V.

Pursuant to the foregoing, we reverse the judgment of the

district court and remand for an award of habeas corpus relief.

REVERSED AND REMANDED

DIAZ, Circuit Judge, dissenting:

In concluding that Lawrence v. Texas, 539 U.S. 558 (2003),

invalidated sodomy laws only as applied to private consenting

adults, the Virginia Court of Appeals did not reach a decision

that "was so lacking in justification that there was an error

well understood and comprehended in existing law beyond

any possibility for fairminded disagreement." Harrington v.

to relief is manifest. See Elmore v. Ozmint, 661 F.3d 783, 872 (4th Cir.

2011) (rejecting suggestion that "our job is solely to rubber-stamp the state

. . . court," notwithstanding state’s "flouting of clear Supreme Court precedent," and envisioning "meaningful role for the federal courts in safeguarding the constitutional rights of state prisoners"). And though we have

nothing but the utmost respect for the point of view expressed by our dissenting friend as to the proper sweep of Lawrence, the dissent’s reliance

for support on characterizations made in passing by our sister circuits, see

post at 28, is unavailing. Those decisions did not address the salient issue

in this appeal, and thus lack the demonstrated contemplation and logical

force necessary to muddle what the Supreme Court clearly established in

Lawrence. 

22 MACDONALD v. MOOSE
Richter, 131 S. Ct. 770, 786-87 (2011). The majority ultimately may be proven right that the Virginia "anti-sodomy

provision facially violates the Due Process Clause of the

Fourteenth Amendment." Maj. Op. at 4. But because the matter is not beyond doubt after Lawrence, and because the district court was bound to give Virginia courts the benefit of

that doubt on federal collateral review, I respectfully dissent.1

I.

While we review a district court’s denial of habeas relief de

novo, Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir. 2009), in

adjudicating a federal petition for habeas relief from a state

court conviction, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "limit[s] the federal courts’

power to issue a writ to exceptional circumstances" where the

state court decision on the merits "‘resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.’" Richardson v. Branker, 668 F.3d

128, 138 (4th Cir. 2012) (quoting 28 U.S.C. § 2254(d)). "If

this standard is difficult to meet, that is because it was meant

to be." Harrington, 131 S. Ct. at 786.

The majority elides this burden altogether, passing upon the

constitutionality of the Virginia anti-sodomy provision as if it

were presented in the first instance. In doing so, my colleagues fail to account for the rigor of federal habeas review,

which is not intended to be "a substitute for ordinary error

correction through appeal." Id. Because MacDonald’s conviction does not rise to the level of an "extreme malfunction[ ]

in the state criminal justice system[ ]," id. (quoting Jackson v.

Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring)), I would affirm the district court’s judgment. 

1For the reasons stated by the district court, I would also affirm the

denial of habeas relief on the additional constitutional claims asserted by

MacDonald. 

MACDONALD v. MOOSE 23
II.

A.

The majority grants MacDonald federal habeas relief on the

basis that the Virginia anti-sodomy provision2 facially violates

the Due Process Clause. The Virginia Court of Appeals, citing

its own precedent, concluded that Lawrence did not facially

invalidate all sodomy statutes,3 but rather only the application

of such statutes to private, consensual sexual activity among

adults. See MacDonald v. Commonwealth, No. 1939-05-2,

2007 WL 43635, at *1 (Va. Ct. App. Jan. 9, 2007) (citing

McDonald v. Commonwealth, 630 S.E.2d 754, 756-57 (Va.

App. 2006)). Accordingly, the Virginia Court of Appeals concluded that the Virginia anti-sodomy provision was constitutional as applied to MacDonald because his sexual conduct

involved a minor. Id.

The majority appears to disagree with this "as-applied"

interpretation of Lawrence on two unrelated grounds. First,

Lawrence overruled Bowers v. Hardwick, 478 U.S. 186

(1986), which dismissed a facial challenge to the constitution2

I refer to the statute in question, Va. Code § 18.2-361(A), as the Virginia anti-sodomy provision. Section 18.2-361(A) provides: "If any person

carnally knows in any manner any brute animal, or carnally knows any

male or female person by the anus or by or with the mouth, or voluntarily

submits to such carnal knowledge, he or she shall be guilty of a Class 6

felony." 

3The Virginia Court of Appeals also ruled that MacDonald lacked

standing to advance such a facial challenge under Ulster County, which

held that a litigant can not raise a facial attack to a statute that is constitutional as applied to him. Ulster County Court v. Allen, 442 U.S. 140, 155

(1979). The majority dismisses this principle, reasoning that because the

Virginia anti-sodomy provision is facially unconstitutional, the law cannot

be constitutional as applied to MacDonald. 

While this analysis is circular, I do not believe the standing principle set

forth by Ulster County matters here. The as-applied and facial challenges

brought by MacDonald entail the same inquiry—whether Lawrence invalidated sodomy statutes on an as-applied or facial basis. 

24 MACDONALD v. MOOSE
ality of a sodomy law. Because the Virginia anti-sodomy provision is indistinguishable from the statute in question in

Bowers, the majority reasons that MacDonald’s facial challenge must succeed just as—according to Lawrence—the

facial challenge in Bowers should have. Second, the majority

contends that allowing the Virginia anti-sodomy provision to

apply to minors would entail rewriting the statute in a manner

forbidden by Ayotte v. Planned Parenthood of N. New Eng.,

546 U.S. 320 (2006). I address each ground in turn. 

B.

In Lawrence, Texas police officers responding to an alleged

weapons disturbance entered a private residence where two

men were engaged in a sexual act. Lawrence, 539 U.S. at 562-

63. The state charged the men with violating a Texas sodomy

statute criminalizing "any contact between any part of the

genitals of one person and the mouth or anus of another person." Id. at 563 (citing Tex. Penal Code Ann. § 21.01). 

Overruling Bowers, Lawrence explained that decisions

made in private by consenting adults "concerning the intimacies of their physical relationship, even when not intended to

produce offspring, are a form of ‘liberty’ protected by the Due

Process Clause of the Fourteenth Amendment." Id. at 578

(quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)). In

the penultimate paragraph of the opinion, however, Lawrence

prefaced its holding with the following qualification: 

The present case does not involve minors. It does not

involve persons who might be injured or coerced or

who are situated in relationships where consent

might not easily be refused. It does not involve public conduct or prostitution. It does not involve

whether the government must give formal recognition to any relationship that homosexual persons

seek to enter. The case does involve two adults who,

with full and mutual consent from each other,

MACDONALD v. MOOSE 25
engaged in sexual practices common to a homosexual lifestyle. 

Id.

The majority characterizes this segment of the opinion as

"ruminations concerning the circumstances under which a

state might permissibly outlaw sodomy" that "no doubt contemplated deliberate action by the people’s representatives,

rather than by the judiciary." Maj. Op. at 19. I do not see how

the majority can be so certain. If anything, the commentary on

what "the present case does not involve" is characteristic of

an as-applied ruling, particularly because the Court used the

words "this case," not "this statute," to limit its holding. See

Lawrence, 539 U.S. at 578. 

This language arguably confines the scope of constitutional

protection to private sexual intimacy between consenting

adults. In fact, the Court repeatedly emphasized these distinctions throughout its historical and legal analysis of sodomy

laws. See id. at 567-69, 571-73. In defending its view that

sodomy laws were never applied to private sexual conduct

among consenting adults, Lawrence recounted the historical

enforcement of sodomy statutes: 

Laws prohibiting sodomy do not seem to have been

enforced against consenting adults acting in private.

A substantial number of sodomy prosecutions . . .

were for predatory acts against those who could not

or did not consent, as in the case of a minor or the

victim of an assault. As to these, one purpose for the

prohibitions was to ensure there would be no lack of

coverage if a predator committed a sexual assault

that did not constitute rape as defined by the criminal

law. . . . Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men

and minor girls or minor boys, relations between

26 MACDONALD v. MOOSE
adults involving force, relations between adults

implicating disparity in status, or relations between

men and animals. 

Id. at 569 (emphasis added). This historical discussion also

evinces an as-applied ruling to private consenting adults, for

it is only relevant inasmuch as it identifies the valid applications of sodomy laws outside this zone of constitutionally protected liberty. 

In any event, in order for MacDonald to prevail on his federal habeas petition, it must be clear that Lawrence facially

invalidated all sodomy statutes. See Harrington, 131 S. Ct. at

786-87. Nowhere in the opinion does the Court do that. The

majority nevertheless infers the unconstitutionality of Virginia’s anti-sodomy provision from the fact that Lawrence

expressly overruled Bowers. Again, this is a bridge too far. If

it is difficult to discern from the Lawrence opinion whether it

invalidated all sodomy statutes, it is even more of a stretch to

do so by negative inference from the case it overturned. 

The majority also relies on Martin v. Ziherl, 607 S.E.2d

367 (Va. 2005), which invalidated the Virginia fornication

statute as contrary to Lawrence. Despite the fact that Ziherl

involved the private sexual conduct of adults, the majority

sees "no valid reason why the logic of that ruling should not

have applied with equal force to the ruling of the Court of

Appeals of Virginia in MacDonald’s case." Maj. Op. at 18.

However, Ziherl undercuts the majority’s conclusion entirely,

because in that case the Supreme Court of Virginia reached

the same "as-applied" interpretation of Lawrence as the Virginia Court of Appeals did in this case, and invalidated the

Virginia fornication statute only as applied to the conduct protected by Lawrence: 

It is important to note that this case does not involve

minors, non-consensual activity, prostitution, or public activity. The Lawrence court indicated that state

MACDONALD v. MOOSE 27
regulation of that type of activity might support a

different result. Our holding, like that of the

Supreme Court in Lawrence, addresses only private,

consensual conduct between adults and the respective statutes’ impact on such conduct.

Ziherl, 607 S.E.2d at 371. Furthermore, Ziherl was a Virginia

civil case on direct appeal—a far cry from federal collateral

review of a state court conviction—and is not "clearly established" federal law. It has no place in the analysis, and to the

extent it does, it undermines the majority’s reasoning. 

Given the opaque language of Lawrence, I do not share the

majority’s conviction concerning the facial unconstitutionality

of Virginia’s anti-sodomy provision. Reasonable jurists could

disagree on whether Lawrence represented a facial or an asapplied invalidation of the Texas sodomy statute. In fact, they

already have. Compare Massachusetts v. U.S. Dep’t of Health

& Human Servs., 682 F.3d 1, 8 n.4 (1st Cir. 2012) (characterizing Lawrence decision as facial invalidation of statute), and

Sylvester v. Fogley, 465 F.3d 851, 857 (8th Cir. 2006) (same),

with D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004)

(explaining that Lawrence "invalidat[ed] Texas’ sodomy statute as applied to consensual, private sex between adults"), and

Muth v. Frank, 412 F.3d 808, 812 (7th Cir. 2005) (characterizing Lawrence as holding that Texas sodomy statute "was

unconstitutional insofar as it applied to the private conduct of

two consenting adults").

C.

The majority also misreads Ayotte, effectively turning the

"normal rule" of "partial, rather than facial, invalidation" on

its head. Ayotte, 546 U.S. at 329 (quoting Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 504 (1985)). The exception to an

as-applied invalidation is just that—an exception to that "normal rule" which, as evidenced by the cases cited by the major28 MACDONALD v. MOOSE
ity, applies almost exclusively to challenges to overbroad

statutes on First Amendment free-speech grounds. 

Furthermore, the majority overlooks that Ayotte actually

declined to facially invalidate the New Hampshire statute at

issue in that case because there was "some dispute as to

whether New Hampshire’s legislature intended the statute to

be susceptible to such [an as-applied] remedy." Ayotte, 546

U.S. at 331. Concluding "that the lower courts need not have

invalidated the law wholesale," the Court "recognize[d] the

possibility of a modest remedy: . . . . an injunction prohibiting

unconstitutional applications." Id. at 331-32. 

Even if Ayotte were instructive, therefore, it simply invites

the next question: "Would the [Virginia] legislature have preferred what is left of its statute to no statute at all?" Id. at 330.

The majority wrongly assumes, without the proof required by

Ayotte, that the Virginia General Assembly did not intend for

its anti-sodomy provision to apply to the conduct that Lawrence arguably exempted from constitutional protection,

despite the fact that Lawrence itself acknowledged that "one

purpose for the [sodomy laws]" could be to cover "predatory

acts against those who could not or did not consent, as in the

case of a minor or the victim of an assault." Lawrence, 539

U.S. at 569.4

In order for the Virginia anti-sodomy provision to escape

facial invalidity, it need not criminalize only conduct that falls

outside constitutional protection. See United States v. Salerno,

481 U.S. 739, 745 (1987) ("The fact that the [statute] might

operate unconstitutionally under some conceivable set of cir4Virginia’s anti-sodomy provision was in place (in one form or another)

long before Lawrence was decided. See Doe v. Commonwealth’s Attorney,

403 F. Supp. 1199, 1202-03 (E.D. Va. 1975). Accordingly, there is no support for the majority’s suggestion that the Virginia General Assembly

enacted an impermissibly broad statute with the specific intent that the

judiciary would subsequently sort out the proper constitutional limitations

of enforcement, for none then existed. 

MACDONALD v. MOOSE 29
cumstances is insufficient to render it wholly invalid, since we

have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment."). Indeed, to suggest

that a state must excise the constitutional defects of a statute

by legislative revision before enforcing those portions that

pass constitutional muster would turn every as-applied ruling

into a facial invalidation. 

III.

If a federal court is to grant a writ of habeas corpus to a

state prisoner incarcerated under Virginia law, it needs to be

more than "confident" that the underlying criminal conviction

violates the Constitution. The foundation for the issuance of

the writ requires a certainty, not just a likelihood, that a state

court ruling "reached a decision contrary to clearly established federal law." See Harrington, 131 S. Ct. at 786-87.

Unlike the majority, the district court here remained faithful

to that distinction in declining to issue the writ. 

I respectfully dissent.

30 MACDONALD v. MOOSE