The Fourth Circuit’s obviously (and profoundly) mistaken habeas grant premised on the alleged facial unconstitutionality of Virginia’s “anti-sodomy provision” |

Kevin C. Walsh at WalshLaw: The panel opinion is right that “the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal . . .” But the Commonwealth did no such thing. It declared conduct criminal through ordinary legislation, and the Fourth Circuit has now erroneously set aside a conviction for violation of that ordinary state legislation through an extraordinary exercise of the federal judicial power.