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Cuccinelli challenges Va. sodomy ruling
Att’y gen’l asks appeals court for re-hearing of case
Virginia Attorney General Kenneth Cuccinelli is challenging a ruling that overturned the state’s sodomy law. (Washington Blade file photo by Michael Key)
Virginia Attorney General Kenneth Cuccinelli has filed a petition with the 4th Circuit U.S. Court of Appeals in Richmond asking the full 15-judge court to reconsider a decision by a three-judge panel last month that overturned the state’s sodomy law.
The three-judge panel ruled 2-1 on March 12 that a section of Virginia’s “Crimes Against Nature” statute that outlaws sodomy between consenting adults, gay or straight, is unconstitutional based on a U.S. Supreme Court decision in 2003 known as Lawrence v. Texas.
A clerk with the 4th Circuit appeals court said a representative of the Virginia Attorney General’s office filed the petition on Cuccinelli’s behalf on March 26. The petition requests what is known as an en banc hearing before the full 15 judges to reconsider the earlier ruling by the three-judge panel.
“We certainly hope they won’t,” 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.
“We think it’s a situation in which everybody agrees that the statute is unconstitutional,” Gastanaga told the Blade.
Greg Nevins, an attorney with the LGBT litigation group Lambda Legal Defense and Education Fund, which joined the ACLU in filing the friend of the court brief calling for overturning the Virginia sodomy law, said requests for en banc hearings are turned down most of the time.
He quoted a federal appeals court rule as stating, “Although petitions for rehearing are filed in a great many cases, few are granted.”
Caroline Gibson, a spokesperson for Cuccinelli, told the Blade in an email that Cuccinelli believes the dissenting judge on the three-judge panel was correct in stating the Lawrence decision applies only to sex between consenting adults in private and doesn’t apply to cases involving a minor. The case in which the three-judge panel of the 4th Circuit Court of Appeals overturned the Virginia sodomy law involved a man charged with soliciting oral sex from a 17-year-old woman.
“We believe the panel decision was erroneous, and that the dissent correctly concludes that the petitioner was not entitled to federal habeas corpus relief, Gibson said, referring to the court’s decision to overturn the man’s conviction under the sodomy law. “So the full court should have the opportunity to decide this matter,” she said.
“Like most people, we think the court made the right decision,” said James Parrish, executive director of the LGBT advocacy group Equality Virginia.
“We think what needs to happen is the General Assembly needs to remove the current sodomy law that has been declared unconstitutional,” he said.
Parrish said Equality Virginia wouldn’t object to a careful revision by the legislature of the state’s criminal code to allow for continued prosecution of offenses such as sex with minors.
“What we’re saying is we agree with the court ruling that, in this case, the law was used unconstitutionally. The best course of action would be for the General Assembly to address that, just like they did with the cohabitation law that they took off the books this year,” he said.
“We think that’s a better recourse than the Attorney General filing another appeal and diverting precious state resources on an issue that the General Assembly should address because the court made the correct ruling on March 12,” Parris said.
Virginia State Sen. Adam Ebbin (D-Alexandria), who’s gay, said he is looking into the issue and the possibility of introducing legislation to address it.
“I’m reviewing this and will consider introducing a bill next year to repeal the Virginia Crimes Against Nature law for consenting adults,” he told the Blade.
The March 12 ruling of the appeals court’s three-judge panel overturned a lower court decision upholding the conviction of a 37-year-old man charged in 2005 with soliciting a 17-year-old woman to engage in oral sex. No sexual encounter took place, records show.
The Attorney General’s office argued that the Supreme Court’s Lawrence decision didn’t apply to cases involving minors. But 4th Circuit Appeals Court Judge Robert King, who wrote the majority opinion, said the Lawrence decision rendered the Virginia sodomy statue “facially” or completely unconstitutional.
He stated other laws could be used to prosecute an adult for engaging in sex with a minor and that the Virginia General Assembly would likely have authority under the Lawrence decision to pass a new law specifically outlawing sodomy between an adult and a minor.
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Comings & Goings
The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected].
Some people are especially inspiring to write about, and one such person is Joseph Poduslo. He is justly proud of his “Luminary of the Year” nomination, which is granted to survivors, caregivers, and researchers, by the Brain Industry Association of America (BIAA). I urge you to take a look at its website, and maybe help Poduslo raise some funds for this incredible organization.
“I have always wanted to share my journey to help and inspire others,” he said. “The brain is the most amazing creation and retraining the brain takes time and effort. But I’m doing it.” You can read his story in his own words. You will find it as inspiring as I did.
After spending time with his family in Texas, he is now back in D.C. He is Senior Vice President, and founding agent, the Poduslo Group. His bio notes, “His work for his real estate clients has garnered him industry-wide recognition. Joseph has been featured in the Washington Post, NBC, CNN, and in 2018, Washington Life Magazine’s ‘Most Influential Business Person Under Forty.’ … When Joseph is not redefining the real estate industry, he has invested in numerous small businesses and restaurants in downtown D.C. over the last 17 years. He founded the D.C. Progressive Dinner, an organization that helps SMYAL, a local non-profit. Joseph formerly served on the Capital Alliance Board in the DC area.”
Delaware
GOP candidate in Del. House race expresses LGBTQ support
Simpler says trans residents deserve protection from discrimination
Early voting is underway in Delaware and one race that has captivated the LGBTQ community is the 14th District House seat being vacated by longtime ally Pete Schwartzkopf. Claire Snyder-Hall, a lesbian, won the Democratic primary and faces Republican Mike Simpler. But Simpler says the LGBTQ community shouldn’t discount him simply because he’s a Republican.
“I was kind of upset that they would even think of me being a Republican, that I would discriminate against the LGBTQ community in general,” Simpler told the Blade. “It’s kind of upsetting knowing that I’m born and raised here, and I’ve had family members that way. I mean the treasurer of my campaign is a lesbian. It’s just upsetting that people feel that way about the gay community in general.”
Simpler, a lifelong resident of Sussex County and the current president of the Rehoboth Beach Volunteer Fire Company said that his experience in the role has allowed him to work alongside many different types of people, including members of the LGBTQ community.
“We probably have the most diverse fire company in the state of Delaware, when it comes to the LGBTQ group,” he said. “People need to realize that the LGBTQ [community] is no different than the rest of the people in the world.”
Simpler also shared with the Blade that he has had firsthand experience with a unique aspect of LGBTQ culture — drag. He dressed up in drag at a fundraiser held at The Pines, a popular gay venue in Rehoboth Beach.
“I was asked to volunteer for a fundraiser, and next thing you know, I find out I’m going to be in drag at The Pines,” Simpler said. “We had a ball! I mean, I had so much fun.”
Not only did Simpler definitively say he supports the LGBTQ community in Delaware, but he added he supports legislative protections for these communities. He pointed out that providing a safe space for marginalized communities is ingrained in American history.
“Protect them,” he said when asked about the potential of supporting pro-transgender legislation amid a wave of anti-LGBTQ state legislation being passed nationwide. “You’ve got to. They’re trying to escape. For example, they’re trying to escape the process like the Jews did, like the Chinese when they came here. They’re trying to move away from an issue where they’re being prosecuted against to somewhere where they can be free and enjoy their life that they want to live.”
In addition to promising LGBTQ support, Simpler says he backs smarter growth in the region by prioritizing better development and efforts to alleviate traffic. He also pledges to attract high-quality jobs to the region.
Simpler faces Synder-Hall in the Nov. 5 general election. Read the Blade’s profile of her, here: https://www.washingtonblade.com/2024/09/24/claire-snyder-hall-interview/
Early voting is already underway.
Virginia
New Virginia license plate celebrates LGBTQ diversity
450 applications needed for it to become official option
Diversity Richmond has designed a license plate that allows Virginia drivers to celebrate and raise the visibility of LGBTQ diversity. The Virginia-based LGBTQ nonprofit needs 450 applications by January for the plate to become an official state option.
The license plate design features a group of hands stacked on top of each other in the far left corner, and the Progress Pride flag runs horizontally across the bottom of the plate. The words “Celebrate Diversity” are prominently displayed over the flag.
Rev. Dr. Lacette Cross, executive director of Diversity Richmond, said the design celebrates the diversity of the LGBTQ community.
“[The design] reflects the diversity of the intersecting identities of our community,” she said.
Applications are available on Diversity Richmond’s website, and the license plate costs $25. Once completed, applicants should email the form to Diversity Richmond, not to the Virginia DMV, as Diversity Richmond will submit both the applications and fees to the DMV on their behalf.
If the organization gathers 450 applications and payments by the start of the 2025 Virginia General Assembly session in January, Del. Betsy B. Carr (D-Richmond) will sponsor the plate through the approval process to make it an official option.
The initiative also serves as a fundraiser for Diversity Richmond, which will receive a portion of the proceeds from the license plate registration fees.
“The ultimate benefit,” Cross said, “is the continual visibility of LGBTQ persons, our allies, and our supporters that are driving around the Commonwealth of Virginia, spreading the message of acceptance and of allyship.”
She described Diversity Richmond as the hub of the LGBTQ community in Greater Richmond, noting the organization’s “really dynamic” work within the community. The nonprofit runs the popular thrift store Diversity Thrift, hosts the annual Virginia Pridefest in September, and exhibits the work of LGBTQ artists in its art gallery.
Diversity Richmond is planning to celebrate its 25th anniversary with a public party at the Virginia Museum of History & Culture on Wednesday, Nov. 13.
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