Virginia Attorney General Ken Cuccinelli has challenged a recent court ruling finding Virginia's anti-sodomy law unconstitutional.
The appeal has gotten national attention as Cuccinelli's gubernatorial bid ramps up.
A three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled on March 12 that Virginia's "Crimes Against Nature" statute, which banned oral and anal sex, violates the due process clause of the Fourteenth Amendment. One judge dissented, agreeing with a lower court that the Supreme Court's ruling in Lawrence v. Texas on sodomy laws applied only to consenting adults. The case in question involved a teenage girl and a 47-year-old man, William Scott MacDonald, who was convicted of soliciting a minor to commit a felony.
A petition was filed on Cuccinelli's behalf asking for the full 15-judge court to reconsider the panel's decision. LGBT advocates have expressed disappointment, saying the law is unconstitutional and anti-gay.
"This case is not about sexual orientation, but using current law to protect a 17 year-old girl from a 47 year-old sexual predator," Cuccinelli spokeswoman Caroline Gibson said in a statement. "We agree with the dissenting opinion that the petitioner was not entitled to federal habeas corpus relief and the full court should have the opportunity to decide this matter. The attorney general is committed to protecting Virginia's children from predators who attempt to exploit them and rob them of their childhood."
Cuccinelli agrees with the dissenting judge, Albert Diaz, who was appointed to the 4th Circuit by President Obama in 2009, who argued for deference to the Virginia Court of Appeals.
In Virginia, sex with a minor who is 15 or older can be a misdemeanor but not a felony. (MacDonald was also convicted of the misdemeanor of contributing to the delinquency of a minor and is not challenging that decision.)
Before the 4th Circuit's ruling, Virginia courts had found that Lawrence did not apply to minors, meaning that teenagers engaging in consensual sexual activity could be at risk of prosecution.
Cuccinelli is running for governor this year against former Democratic National Committee chairman Terry McAuliffe, whose campaign picked up on the case.
"This is just another example of Ken Cuccinelli ignoring the economy and instead focusing on his divisive ideological agenda," McAuliffe spokesman Josh Schwerin said in a statement.
In response, Cuccinelli campaign spokeswoman Anna Nix called it "sad and unfortunate the day has come that Democrats attack someone for protecting children from sexual predators."