Supreme Court upholds Virginia cross-burning statute, with conditions

The United States Supreme Court upheld Virginia's criminalization of cross-burning, in a complex decision which involves six different opinions.

The statute, Va. Code § 18.2-423, provides as follows:

"It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.

Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

Class 6 felonies in Virginia are punishable by "a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both."

The Court's decision reverses the Virginia Supreme Court, which in this 4-3 decision held the statute unconstitutional. The Supreme Court's decision somewhat vindicates the dissenters on the Virginia Supreme Court, who were the new Chief Justice Hassell, the old Chief Justice Carrico, and Justice Koontz. The majority opinion was written by Justice Lemons. Earlier, the Virginia Court of Appeals had affirmed the defendants' convictions.

The U.S. Supreme Court's decision did not leave the statute untouched, as the "prima facie" language, holding that it was an issue of proof whether the defendant intended by burning the cross to intimidate anyone. In doing so, the plurality relied in part on language in the Virginia Model Jury Instructions. Justice Scalia dissented on this point, noting that the VMJI do not have the force of law. Justice Thomas dissented on this point, writing that he would uphold the statute in its entirety.

The VMJI certainly do not have the force of law, and are constantly evolving. I had a civil case years ago involving an obscure point under the wrongful death statute, and found what I believed was an error in comments to the model jury instructions. The powers-that-be agreed and the commentary was removed. (At the hearing I explained all this to the circuit court judge, who reluctantly ruled in my favor, while criticizing the law.)

This article, titled "Soon to Be a Major New York Times Correction: A New York Times editorial gets a Supreme Court decision exactly wrong," appearing in the Weekly Standard, says the New York Times (and I?) are wrong about whether the statute was upheld. Reading it over, I don't think the Weekly Standard got it more than one-third right, either - appellees Elliott and O'Mara, winners before the Virginia Supreme Court, lost in the U.S. Supreme Court, and only as to appellee Black (whose trial was tainted by the "prima facie" language) did the U.S. Supreme Court agree that his conviction must be overturned.

A newspaper's website in India declares of the case that "‘Burning Crosses’ Splits US Jury."

On the holding regarding intent to intimidate, a feminist group concludes that "Cross Burning Decision Could 'Doom' Anti-Abortion Extremists' Case," as reported here.