A federal appeals court on Tuesday invalidated Virginia’s law prohibiting anal and oral sex, citing the landmark U.S. Supreme Court decision in Lawrence v. Texas that held Texas’ anti-sodomy law unconstitutional. In a 2–1 decision, the U.S. Court of Appeals for the Fourth Circuit held that the state’s provision banning “crimes against nature,” which include “’carnal knowledge’ by one person of another by the anus or the mouth” “cannot be squared with Lawrence.” The 2003 high court decision held that “statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty” in the Fourteenth Amendment’s due process clause.
Fourteen states still have sodomy laws on the books, including Texas — the state whose law was invalidated by the U.S. Supreme Court’s decision in Lawrence. While Texas notes the Lawrence decision in its penal code, it takes a full act of the legislature to repeal a statute, and the legislature’s supermajority has not let the repeal come to a vote. Four other states only criminalize sodomy if you’re gay. Although most of these statutes are rarely if ever enforced, affirmative attempts to formally repeal them have faced Republican resistance.
The legal challenge in this case involved a man accused of criminal solicitation of a minor who argued that the underlying “crimes against nature” statute on which the prosecution was based was unconstitutional. The dissenting judge, an Obama appointee, argued that the law should not be invalidated as applied to this particular defendant because Lawrence only applied to two consenting adults.