“Virginia AG Ken Cuccinelli’s Anti-Sodomy Cert Petition Is Not Nearly As Crazy As People Say,” Dorf wrote on his blog, Dorf on Law.
Faint praise, as Dorf laughingly acknowledged in a recent interview. But he thinks Cuccinelli has a reasonable legal argument in contesting a federal appeals court ruling that said Virginia’s anti-sodomy law is unconstitutional in all circumstances, and thus convictions predicated on it cannot stand.
Other legal commentators strongly disagree with Cuccinelli’s argument, and Chief Justice John G. Roberts Jr. this month rejected Virginia’s request to put the ruling on hold.
The full court will decide this fall whether the decision from the U.S. Court of Appeals for the 4th Circuit in Richmond warrants its review.
The 2 to 1 decision said the Supreme Court’s landmark 2003 gay rights ruling in Lawrence v. Texas, which struck down a similar Texas law, leaves no room for broad state laws that criminalize oral and anal sex.
Naturally, it is difficult to separate the legally legitimate from the politically expedient when Republican Cuccinelli is embroiled in the country’s hottest political race, the campaign for governor against Democrat Terry McAuliffe.
Cuccinelli’s campaign has built a Web site that portrays the law as the commonwealth’s last defense against pedophilia and helpfully provides a listing of sex offenders by Zip code.
Add to the mix Cuccinelli’s past condemnation of homosexuality and his generally conservative views, and his stand has been mocked by the ladies of “The View” and late-night comics. Jay Leno not only made Cuccinelli the punch line of a joke but also mispronounced his name in the process.
The case at issue doesn’t involve homosexuality but the distasteful tale of then-47-year-old William Scott MacDonald, who in 2004 requested oral sex in the most direct way possible from a 17-year-old girl. She did not comply, but MacDonald was later charged and convicted of soliciting a minor to commit a felony.
That would be Virginia’s law that makes a felon of anyone who “carnally knows any male or female person by the anus or with the mouth, or voluntarily submits to such carnal knowledge.”
Virginia agrees that the Supreme Court’s Lawrence decision makes the law inapplicable to consenting adults. But it points to language in Justice Anthony M. Kennedy’s opinion that it contends opens the door for using the law in other circumstances:
“The present case does not involve minors,” Kennedy wrote, adding that it also was not about coerced sex or public conduct or prostitution.
Virginia courts agreed with the commonwealth’s view of Lawrence regarding minors and upheld MacDonald’s conviction. He then took his case to federal courts.