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Cuccinelli denied sodomy ruling rehearing

Will Virginia Attorney General take case to Supreme Court?

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Ken Cuccinelli, Virginia, gay news, Washington Blade
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.

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17 Comments

17 Comments

  1. Scott Seaman

    April 10, 2013 at 2:52 pm

    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.

    • Kimberly Levinson

      April 10, 2013 at 11:34 pm

      That's because these 'small government' types have small brains–and smaller organs.

  2. Mike Cendejas

    April 10, 2013 at 3:25 pm

    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.

  3. Karen Brown

    April 10, 2013 at 6:35 pm

    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.

    • Robben Wainer

      April 13, 2013 at 7:14 am

      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.

  4. Cindy Reinke Pressnall

    April 10, 2013 at 9:57 pm

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

  5. Charles Porter

    April 10, 2013 at 10:33 pm

    Indecent liberties with a minor covers it.

  6. Skeeter Sanders

    April 11, 2013 at 5:01 pm

    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.

  7. Robben Wainer

    April 13, 2013 at 7:12 am

    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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Local

Long-time LGBTQ activist running for Md. House of Delegates

Patrick Paschall is former FreeState Justice executive director

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Patrick Paschall (Photo courtesy of Eli Sauerwalt of Patrick Paschall for Delegate)

Former FreeState Justice Executive Director Patrick Paschall last week announced via social media that he is running for the Maryland House of Delegates.

“As a proud parent of two kids in Prince George’s County public schools, former Hyattsville City Council member, and lifelong civil rights advocate and policy analyst, I’ve spent my life and career working for equity, community and sustainability for my family,” Paschall said in a statement posted to Facebook on Nov. 23. 

Paschall, who currently is the American Rescue Plan Program Manager for the city of Hyattsville, previously served as executive director for FreeState Justice from 2015 to 2017. 

His LGBTQ advocacy work also includes serving as senior policy counsel for the National LGBTQ Task Force, as an organizer for Pride at Work and as a policy fellow for the National Center for Transgender Equality.  

He also worked for Family Equality Council, an organization advocating for the rights of same-sex couples and their children. 

“One of the things I’m running on is being a parent,” Paschall told the Washington Blade. “We can provide more opportunities for families to succeed in our communities.”

Paschall is running to represent District 22, which includes Hyattsville, where he has lived for over 10 years with his two children, who currently attend Hyattsville Elementary School, and his wife, who identifies as pansexual. 

He told the Blade he views his family as a “rainbow family,” but pointed out he and his wife did not have to endure the same difficulties as his friends who are married same-sex couples when they wanted to adopt children.

“When I became a parent, no one stopped by my house to make sure it was an adequate living situation for my child, no one checked to make sure I had a room dedicated to the child and for no other purpose,” he said. “But my friends Jamie and Sean went through all of that when they tried to adopt a kid.”

Paschall explained that even though he and his wife didn’t go through these experiences, there was still room for Maryland to improve in the areas of adoptions and civil rights. 

“It strikes me how much privilege I have because the state doesn’t design to make it hard for me like it does for so many same-sex couples,” he explained. 

Patrick Paschall with his family. (Photo courtesy of Eli Sauerwalt of Patrick Paschall for Delegate)

Much like with the recent elections in neighboring Virginia, Paschall said helping parents is an important issue for him — one he wants to carry to Annapolis — if elected “because my district deserves better schools for our kids, more child care options and family support like paid family leave.”

“I think that District 22 needs a voice in Annapolis to represent progressive parents and to exercise policy expertise in achieving the values of our community,” he added. “And I have the experience to get it done.”

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D.C. area LGBTQ bars, eateries receive $100K COVID-19 relief grant

Pitchers, League of Her Own received NGLCC, Grubhub funds

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indoor dining, gay news, Washington Blade
(Washington Blade photo by Michael Key)

The D.C. LGBTQ sports bar Pitchers and League of Her Own, its adjoining lesbian bar, are among the nation’s first LGBTQ bars that serve food as well as alcoholic beverages to receive a $100,000 COVID-19 relief grant under a $2 million Community Impact Grant Program.

The program, aimed at supporting LGBTQ-owned and LGBTQ-allied small businesses struggling from the pandemic, was launched in September as a joint project of the National LGBT Chamber of Commerce, which goes by the initials NGLCC, and the global online food delivery company Grubhub.

In a Tuesday announcement, NGLCC and Grubhub said Pitchers and League of Her Own, which operate as one business in adjoining buildings in D.C.’s Adams Morgan neighborhood, are among the first three recipients of $100,000 grants under the Community Impact Grant Program. The other two recipients are FOODE + Mercantile of Fredericksburg, Va., and Café Gabriela of Oakland, Calif.

“Following this initial round of recipients, more grants will be issued in late 2021 and early 2022,” the announcement by the two groups says. In an earlier announcement, the groups said the application period for the grants program took place from September through Oct. 12, and the grants would range in amounts from $5,000 to $100,000.

“The impact of COVID-19 has been debilitating for countless restaurant and bar owners, including the many LGBTQ+-owned restaurants across the country who have persisted through lockdowns, operational changes and labor supply shortages,” said NGLCC Co-Founder and President Justin Nelson. “We’re grateful to have partnered with Grubhub to offer real lifelines to support businesses throughout the nation,” Nelson said.

“Building community in a fun and safe place has been our mission since the very beginning,” said David Perruzza, the owner of Pitchers and League of Her Own. “We’re relieved and thankful for these funds, and are looking forward to more stable days ahead,” Perruzza said.

“As a trans masculine and queer immigrant person of color, I’ve worked hard and put all my love and energy into building a beautiful and welcoming space in Café Gabriela,” said owner Penny Baldado. “I’ve remained resilient through COVID, and this grant is the injection of funds that we need to continue along our journey to full recovery,” Baldado said.

The statement announcing the first three grant recipient says funds for the $2 million grant program were generated by Grubhub’s “Donate the Change” program of which NGLCC became a partner in June. Grubhub says the program asks customers receiving food delivered by Grubhub “to round out their order and donate the difference” to the charitable fund.

“COVID has turned the restaurant industry on its head the last 18 months, and at Grubhub, we’ve been working hard every day to support our restaurant partners across the country,” said Amy Healy, Grubhub’s vice president of government relations. “As the world starts to return to a new normal, we’re proud to partner with the NGLCC and provide these grants to LGBTQ+-owned and LGBTQ+ ally-owned restaurants across the country that are pillars of their communities.”

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Va. businessman apologizes for burning of rainbow flag poster

‘Shocked and horrified’: Ashburn incident caught on video

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Organizers of an event where a Pride symbol was burned say the incident was a misunderstanding.

The owner of a Virginia technology company that hosted a private Veterans Day party on the grounds of an Ashburn, Va., brewery in which a company employee used a flame-throwing device to ignite a rainbow flag poster said the selection of the poster was a mistake and he and his company have no ill will toward the LGBTQ community.

The Washington Blade learned about the poster burning from a customer of the Old Ox Brewery in Ashburn, where the incident took place on its outdoor grounds. The customer made a video of the incident with his cell phone and sent a copy of the video to the Blade.

The video, which includes an audio recording, shows a man using a hand-held flame-throwing device to ignite the rainbow poster, which was hanging from a cable and appeared to be mounted on cardboard or a thin sheet of wood. Bystanders can be heard laughing and cheering as the poster is set on fire.

The poster consisted of a variation of the LGBTQ Pride rainbow flag that included the word “love” configured from an upper white stripe on the rainbow symbol.

The customer who took the video, who has asked not to be identified, thought the decision to set the poster on fire was a sign of disrespect if not hatred toward a longstanding symbol of LGBTQ equality and pride.

Chris Burns, Old Ox Brewery’s president, shared that view, telling the Blade he and his staff were “shocked and horrified” when they learned later that a rainbow flag poster had been burned on the brewery’s grounds. Burns said Old Ox supports the LGBTQ community and participated in LGBTQ Pride month earlier this year.

He said the company that held the private party paid a fee to hold the event on the brewery’s grounds, but the brewery did not know a rainbow poster would be burned.

“I’m mortified that our event was interpreted in this way,” said Nate Reynolds, the founder and partner of Hypershift Technologies LLC, the Falls Church, Va.-based technology company that organized the Nov. 11 party at Old Ox Brewery. “I can assure you that ZERO ill-will or offense was meant,” Reynolds told the Blade in a Nov. 24 email.

“We held a small private party for a few clients, which included a demonstration of Elon Musk’s Boring Company ‘Not a Flamethrower,’” he said in his message. He was referring to one of billionaire businessman Elon Musk’s companies that specializes in boring through the ground to create tunnels for cars, trains, and other purposes. 

“After so many being isolated during COVID, we wanted to have an event that was lighthearted and to some small effect, silly,” Reynolds said in his message to the Blade.

According to Reynolds, in thinking about what should be used for “fodder” for the flame-thrower, he went to a Five Below discount store and purchased items such as stuffed animals and posters, including a “Space Jam” movie poster as well as what he thought was a poster of the British rock group The Beatles.

“When I pulled the Beatles poster out of the tube it was instead the ‘Love’ poster,” he said, referring to the rainbow flag poster the Blade asked him about in an earlier email.

“All I focused on was the ‘Love’ wording and not the rainbow and did not draw the conclusion that the poster was an icon that represents the LGBTQ community,” Reynolds said. “It was my own ignorance of not connecting the symbolism of the poster. If I had realized it was a symbol of the LGBTQ community, I would not have used it,” he said.

“I feel terrible, and I want to emphasize that I am solely responsible for this mistake – not the Old Ox Brewery,” he wrote in his message. “Nobody at Old Ox had anything to do with this activity.”

Reynolds added, “Hate has no place in my heart, and I sincerely apologize for any offense that could have been drawn from what I now realize was poor judgement on my part. I simply didn’t correlate this poster with the LGBTQ pride symbol.”  

(Washington Blade photo by Michael Key)

Before Reynolds issued his statement of apology, Burns, the Old Ox Brewery co-owner, told the Blade in an email he was “saddened and upset” over the rainbow poster burning on the grounds of his brewery.

“We do not wish to benefit from this event,” he said in his email message. “Therefore, Old Ox is donating 100% of the revenue generated from the private event to GLSEN.”

GLSEN is a national LGBTQ advocacy group that focuses on education and support for LGBTQ youth. Burns said Old Ox Brewery also donated proceeds from a Pride month event it organized earlier this year to GLSEN.

LGBTQ activists and organizations contacted by the Blade said they were unfamiliar with the variation of the rainbow flag with the word “love” that was the subject of the poster burning incident. The poster is available for sale at Five Below stores in the D.C. metropolitan area for $5.

Small print writings on the poster show it is produced by Trends International LLC, which describes itself on its website as “the leading publisher and manufacturer of licensed posters, calendars, stickers and social stationery products.” The Blade couldn’t immediately determine who designed the poster.

 The video of the poster burning incident can be viewed here:

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