U.S. Chief Justice John Roberts on Friday denied a request by Virginia Attorney General Ken Cuccinelli that a lower court ruling overturning the state’s sodomy law be put on hold while the Supreme Court decides whether to hear Cuccinelli’s appeal.
Roberts, acting on behalf of the full court, did not issue an explanation for his denial of the request for a stay of a decision in March by the Fourth Circuit U.S. Court of Appeals in Richmond that declared Virginia’s Crimes Against Nature, or sodomy law, unconstitutional.
Cuccinelli asked the high court to put a stay on the Fourth Circuit ruling shortly after he filed a petition asking the Supreme Court to hear his appeal of the ruling. The high court was expected to decide later this year or early next year whether to hear the case. If it decides against hearing the case, the Fourth Circuit Appeals Court ruling remains in place.
That ruling overturned a felony conviction by a judge in the city of Colonial Heights, Va., of a 47-year-old man for soliciting oral sex from a 17-year-old woman. Although no sex took place, the defendant, William Scott MacDonald, had been charged with soliciting someone to commit a sexual act that his attorneys argued was no longer illegal.
A three-judge panel of the Fourth Circuit Appeals Court agreed with his attorneys, ruling 3-1 that the 2003 landmark U.S. Supreme Court decision Lawrence v. Texas invalidated the Virginia Crimes Against Nature law as “facially” unconstitutional, preventing it from being enforced, even in cases of consensual sodomy between an adult and a minor between the ages of 15 and 18. The judges noted that the age of sexual consent in Virginia is 15.
Cuccinelli has argued the Supreme Court Lawrence decision does not apply to sexual relations between an adult and a minor. He has stated in political ads in his campaign for governor that the sodomy law is needed to protect children from sexual predators. But attorneys and prosecutors familiar with Virginia’s criminal laws dispute that claim, saying existing state law allows for the prosecution of adults who engage in sex with minors.
The Fourth Circuit ruling said that while the Lawrence decision prohibited Virginia from applying the sodomy law in cases of consensual sex with someone between 15 and 18, it did not prevent the state legislature from enacting laws banning all sex between adults and people in that age range.