April 9, 2013 | by Lou Chibbaro Jr.
Cuccinelli denied sodomy ruling rehearing
Gay News, Washington Blade, Gay Virginia, Ken Cuccinelli

Virginia Attorney General Kenneth Cuccinelli hoped to challenge a ruling that overturned the state’s sodomy law. (Washington Blade file photo by Michael Key)

The Fourth Circuit U.S. Court of Appeals in Richmond issued an order on Monday denying a petition by Virginia Attorney General Ken Cuccinelli asking the full 15-judge court to reconsider a decision by a three-judge panel last month that overturned the state’s sodomy law.

In an action that surprised some court observers, the order says none of the court’s judges requested a poll among themselves to determine which, if any of them, favored Cuccinelli’s request for an en banc rehearing of the sodomy case by the court’s 15 active judges and one senior judge.

Under court rules, if no judge calls for a poll or vote on the issue, the petition for a rehearing is automatically denied in what, in effect, becomes a unanimous decision.

Among the judges that chose not to approve a rehearing was Judge Albert Diaz, who wrote the dissent in the three-judge panel’s 2-1 ruling declaring Virginia’s “Crimes Against Nature” statute unconstitutional. The statute classifies sodomy between consenting adults, gay or straight, as a crime.

“It’s a pretty resounding rejection,” said Claire Gastanaga, executive director of the ACLU of Virginia, which filed a friend of the court brief urging the three-judge panel to overturn the state sodomy law. “There really wasn’t any interest in doing this at all by anybody.”

Caroline Gibson, Cuccinelli’s deputy communications director, didn’t respond to a question from the Blade about whether Cuccinelli plans to petition the U.S. Supreme Court to take the case, which would be the last remaining step to challenge the appeals court ruling overturning the sodomy law.

“We would hope that they wouldn’t,” Gastanaga said. “We would hope that they would understand what they need to do is work to get this law off the books. But I wouldn’t be surprised if they filed a petition for cert.”

Gastanaga was referring to the process for taking a case before the Supreme Court through the filing of a petition for a Writ of Certiorari. At least four of the nine justices on the high court must approve certiorari or “cert” in order for the court to accept a case for consideration on the merits.

The March 12 ruling by the three-judge panel of the Fourth Circuit appeals court overturned a lower court decision upholding the conviction of a 47-year-old man charged in 2004 with soliciting a 17-year-old woman to engage in oral sex on grounds that the sodomy statute is unconstitutional. No sexual encounter took place, according to court records.

Cuccinelli’s office argued in its 21-page petition for a rehearing that the Supreme Court’s 2003 Lawrence v. Texas decision overturning state sodomy laws didn’t apply to cases involving minors. However, Fourth Circuit Court of Appeals Judge Robert King, who wrote the majority opinion, said the Lawrence decision rendered the Virginia sodomy statute “facially” or completely unconstitutional.

“As we stated last week, this case has nothing to do with sexual orientation or private sexual acts between consenting adults,” Gibson told the Blade in an email on Tuesday. “It’s about using current law to protect a 17-year-old girl from a 47-year-old sexual predator. The attorney general is committed to protecting Virginia’s children from predators who attempt to exploit them and rob them of their childhood.”

Gibson said Cuccinelli agreed with the dissenting judge that the defendant in the case wasn’t entitled to relief from the three-judge panel of the fourth circuit appeals court and the full court should have been given an opportunity to decide the matter.

Judge King stated  in the majority opinion that other laws could be used to prosecute an adult for engaging in sex with a minor and that the state legislature would likely have authority under the Lawrence decision to pass a new law specifically outlawing sodomy between an adult and a minor.

Virginia State Sen. Adam Ebbin (D-Alexandria), who’s gay, has said he is considering introducing a bill next year to repeal the Crimes Against Nature law for consenting adults.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

17 Comments
  • So it's legal to get a blowjob in Virginia again? Damn, these 'small government' types sure do spend the bulk of their time worrying about what goes on in everyone else's bedrooms.

  • It must be a drag to be a republican wife in Virginia. When are they going to pass a law stating you must only procreate during that time it is most likely to take? Oh wait, that is based on science and would just confuse them.

  • All you have to do is legally forbid sex with minors and include sodomy in the definition of what constitutes 'sex' to do what he claims he thinks the laws do, and keep what consenting adults do in their own bedrooms out of it.

    • I agree Karen, if you force minors to refrain from sodomy by making it illegal, you may be making them the victims of the circumstances that would otherwise enable them to develop in their reaching of maturity.

  • Guess he can get blow from his wife now. :)

  • Indecent liberties with a minor covers it.

  • Although the age of sexual consent in Virginia is 18 and the minor involved in this case was 17, there was no question that Cuccinelli's attempt to do an end run around the Supreme Court's Lawrence v. Texas decision was doomed to fail from the very start.

    The Supremacy Clause of the U.S. Constitution (Article VI, Section 2) actually PROHIBITS lower courts from making decisions that run directly counter to those made by the nation's highest court. Only the Supreme Court itself can overturn its own rulings — and it does so very rarely.

  • I agree if sodomy is banned, gay men may be forced to involve themselves in sexual behavior that is more questionable. If a gay couple is not permtted by law to experience their sexuality how they choose to express it, they maybe forced into practicess that incorporate their inhibitions in a way that repressess their true desire.

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