Virginia Is For [Some] Lovers: Cuccinelli Continues Fight To Save Crimes Against Nature Law

virginia%20is%20for%20loversVirginia Attorney General Ken Cuccinelli has decided to continue the fight to preserve the state’s “crimes against nature” law that bans both oral and anal sex in both heterosexual and homosexual relations. The United States Court of Appeals for the Fourth Circuit (considered by many to be the country’s most conservative circuit) struck down the law on obvious constitutional grounds. However, Cuccinelli has filed a motion for reconsideration to try to get that decision reversed. The current attorney general and likely GOP gubernatorial candidate Ken Cuccinelli wants to keep anti-sodomy laws on the books in Virginia.

Notably, Cuccinelli’s position contradicts the position of many in the GOP who support not just the decriminalization of homosexual relations but more recently same-sex marriage. It is a position that conflicts with basic libertarians values that motivate some in the GOP and many independents. The most basic right of Americans is, to quote Louis Brandeis, the right to be left alone. The intrusion of the government into the actual bedrooms of Americans is the ultimate expression of government power and abuse. It is also a classic form of majoritarian tyranny where neighbors insist that you live by their moral code and values. It is not the position of those who want to limit the role of government in the lives of citizens.

The law states:

Va. Code § 18.2-361(A) provides that: “If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.”

Fortunately, the Fourth Circuit opinion is unassailable and will not be reversed in my view. We have grown as a nation both in terms of our laws and our values. It is not that a majority approve of these relations but they embrace the right of citizens to decide how they relate for their lovers and spouses. It is also a law that would criminalize relations that are widely practiced by citizens — condemning conduct that a majority support by their conduct. The future of such morality legislation is dim in this country not because we are less moral but because we are more tolerant and inclusive.

Source: MSNBC

73 thoughts on “Virginia Is For [Some] Lovers: Cuccinelli Continues Fight To Save Crimes Against Nature Law

  1. Fortunately, the Fourth Circuit opinion is unassailable and will not be reversed in my view.”

    The 2-1 vote of the panel shows how religiously conservative the 4th Cir is.

    I do not expect the granting of an en banc rehearing or the granting of a writ of certiorari in the S.Ct.

  2. Cuccinelli is terrible on women’s healthcare issues, also. The race with McAuliffe is pretty close but Cuccinelli may just have handed him northern Virginia.

  3. The desire by some Republicans to dictate how others live their lives contradicts conservative beliefs – nevertheless, the desire to impose values on others drives the Republican party (and drives others away).

    I have often felt that the Republican party is leaving its conservative principles; how should a conservative vote?

  4. This post is based on a press report that itself is based on a press report, not on legal analysis. Moreover, filtering this through a political lens, as these press reports and this post have done, provides a distorted picture of the legal issues. Here is a link to the Virginia state court decision that the Fourth Circuit said was “contrary to, or
    involved an unreasonable application of, clearly established
    Federal law, as determined by the Supreme Court of the
    United States.” The Virginia state court decided two things: (1) the defendant could not challenge the law except insofar as it had been applied to him; and (2) the law was not unconstitutional as applied because an adult’s solicitation of oral sex from a minor is not constitutionally protected under Lawrence v. Texas. Neither of these determinations is contrary to, or an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States. The Fourth Circuit itself routinely applies the first principle. And the second principle rests on an extension of Lawrence. Even if that extension were warranted, it does not suffice for habeas review. As for the predictions about en banc rehearing, that is a close call. Professor Turley’s description of the Fourth Circuit as “considered by many to be the country’s most conservative circuit” is outdated. It is unclear if he himself holds the view that the court is conservative, but if he does, he is wrong. Moreover, a conservative/liberal divide does not map neatly onto predictions about how a vote whether to take this case en banc might go; the dissenting judge in this case was appointed by President Obama while the two judges in the majority were appointed by President Clinton. The dissenting judge is right about in the middle of the en banc court (together with the current Chief Judge, a Clinton appointee). And that middle is broad. If it has a tilt, it is not rightward. More important than ideological analysis, in this case, is analysis of the factors under FRAP 35. En banc review is not for simple error correction, but a holding that a state statute is facially unconstitutional (and not just unconstitutional as applied to constitutionally protected conduct) is a significant ruling. And the fact that the ruling was sought as part of a coordinated campaign by a national legal group and prominent law professors is another indication of the decision’s significance.

  5. Cuccinelli could contend as the worst person on the political scene. Also if he is certain about the need for these sodomy laws then I believe his wife has suffered sexually through the years.

  6. Kevin – Darn right its significant! If the missus & I can’t occasionally provide a little oral loving for each other while we are in VA I will consider that a full on assault of the traditional definition of marriage!!

    Further, I want every judge involved and everyone pleading for the prohibition of “sodomy” to swear under oath with the threat of perjury that they have not ever engaged in, as either a provider or a recipient of any sort of activity that would be prohibited under a sodomy law.

  7. We had a discussion in the dogpac and do not believe that the Virgiina laws apply to dogs. If it does then please advise. HumpinDog has a cousin in Richmond who is very worried.

  8. One job that we dont want this Italian guy to get in Virginia is Dog Catcher. Let him catch humans humpin each other. What is up with these Italian guys who go right wing RepubliCon and go off on things that are common in Italy. We all know that Mussolini was gay.

  9. I believe the desire to keep laws like this is not as much from a conservative religious or moral perspective as it is from a authoritarian loving perspective. Laws like this make just about everyone a criminal. Of course, the government cannot prosecute everyone however. So, it uses its discretion to punish those it wants to target. This seems like a violation of the spirit of the rule of law because now everyone is a criminal and the government picks and chooses who it wants to go after for reasons unrelated to the crime for which the person is charged. We need to stop making everyone a criminal with overly broad laws which are left to the “beneficent” discretion of prosecutors for who to apply them to.

  10. after this, I can’t believe he is a contender for office in Virginia. What is he thinking? Or maybe Virginia isnt for Lovers after all.

    There are going to be a good many people breaking that law.

    Civil Disobedience Henry David Thoreau could get behind [if you know what I mean, wink, wink]

  11. here is Ken’s contact info:

    Mailing Address
    10560 Main Street
    Suite 218
    Fairfax, VA 22030

    Telephone
    703-766-0635

    I called and left a message.

    This is just laughable, this has got to be a belated April fools joke.

    He is done politically and if he isnt? Aphrodite help us all.

  12. mespo:

    is he finished politically? I cannot see conservatives voting for him after this, at least fiscal conservatives who are, more often than not, social liberals due to a libertarian streak.

  13. It is easy and fun to make crude jokes of dumb schmucks in Virginia who elect the likes of Cuccinelli and Eric Kantor. The legal/factual anal is good as long as you keep sis out of it. And second cousins once removed too. And Y there is a y between anal and sis, I dont know. I do believe that Eddie Kantor is rolling over in his grave.

  14. The United States Court of Appeals for the Federal Circuit (considered by many to be the country’s most conservative circuit) struck down the law on obvious constitutional grounds.
    —————————————–
    Go ahead and submit a Petition for Review. I think that’s what it’s called. Denied.

  15. Bron:

    He appeals to the conservative religious crowd which keeps him well financed with tax free dollars. He’s not so radical when you talk to him but he’s totally in their pocket and liable to propose anything. I think he’s just getting started.

  16. More of those Fascist Liberals at work in VA, this time disguised as Conservative Attornies General, and standing in front of a Fascist Liberal Activist Court too! Fascists! Fascists! Everywhere!

  17. Nice…. So does it still enforce its sodomy laws in view of Bowser v Hardwick….. I guess the children are still fair game and the mules….

  18. mespo:

    well he has had some pretty amazing shots across the bow of the ship of state.

    Ultrasounds and now this, religious conservatives must be some really strange people. I wonder if they understand how foolish this is?

    He lives around here somewhere, I am not sure after this, if I saw him in public, I could refrain from laughing and making some lewd comment if I was introduced.

    What do you think his chances for being elected are? People who know him say he can quote Jefferson and understands the founding. They are probably right on the former, a parrot can quote Jefferson, but if he is trying to push laws like this he needs to take another look at the latter.

  19. lrobby:

    well I always say liberals and conservatives are all the same, they both want to put their hands in your pants.

  20. Ken Walsh:

    ” (2) the law was not unconstitutional as applied because an adult’s solicitation of oral sex from a minor is not constitutionally protected under Lawrence v. Texas. ”

    ********************************

    Here’s the law: Va. Code § 18.2-361(A) provides that: “If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.”

    The problem of course is that nowhere in the statute is any restriction made to stop the law only at solicitation of minors. The archaic law refers to solicitation of “any male or female person” without mentioning minors. McDonald was thus convicted of an element that does not exist in the statute namely soliciting minors. (The alleged victim was 17 years old and above Virginia’s age of consent). Amid all the hoopla over standing and facial versus applied unconstitutionality you missed the most important part. As the 4th Circuit said,

    We are confident, however, that we adhere to the
    Supreme Court’s holding in Lawrence by concluding that the
    anti-sodomy provision, prohibiting sodomy between two persons
    without any qualification, is facially unconstitutional.

  21. “Apparently it is easier to make crude jokes than to address Mr. Walsh’s legal/factual analysis.”

    Mahtso,

    Yes it is easier to ridicule than to discuss these sodomy laws from a legal point of view. In my opinion sodomy laws, regardless of sexual preference, are an unconstitutional invasion of the peoples’ privacy, despite their long history in the US. In my opinion anyone who even entertains the idea of the correctness of “sodomy” laws as they have been enforced in the US upon heterosexual as well as homosexual activity, is a contemptible fool. The percentages of people who take part in oral and/or anal sex according to the research of Kinsey and Masters/Johnson are so high as to consider them to be normative sexual practice. How in the world anyone can justify criminalizing normative sexual practice is beyond me and that is the real issue being discussed here.

  22. mespo727272,

    He was not convicted of violating the “crimes against nature statute” by itself (Va. Code 18.2-361(a), but rather the crime of solicitation to commit a felony (Va. Code 18.2-29), a portion of which addresses adults and minors.

  23. “well I always say liberals and conservatives are all the same, they both want to put their hands in your pants.” – Bron

    Almost.

    “well I always say liberals and conservatives corporatists/fascists and theocrats are all the same, they both want to put their hands in your pants.”

    There. That’s better.

  24. rafflaw 1, April 4, 2013 at 1:23 pm
    ——————————————–
    Another reason to be celibate. I’m not a virgin, but maybe I should be.

  25. Bron 1, April 4, 2013 at 10:42 am

    ….

    “The Virginia State Seal makes me super uncomfortable”
    ==============================================
    Send in The Baby Seal Club:

  26. Crimes against nature…
    Seems reasonable. Now all we need is Mother Nature to testify that said actions are indeed against nature. Seeing that such activity happens in nature it might be a hard argument but if She testifies to it, I’ll listen.

    Also as has been often times pointed out celibacy is just about the only sexual activity that isn’t seen in nature. It would be easier to say the priest is acting against nature.

  27. When you stand definitely depends on those with whom you sit. Cuccinelli sits with the religious folk who are obsessed with the sex practices of others. He’s been told to stand and stand he must. If one wants to sit with the obsessed, vote for him.

  28. I love the idea of laws against oral sex being “facially unconstitutional.”

    Are laws against anal sex, an example of “the ends justify the means”, or just nullification of “you’ll get it in the end”?

  29. Kevin Walsh:

    I’m with you but if the predicate offense he was charged with was not a felony, he can’t be convicted of solicitation of well … nothing. The analysis is thus directed to the predicate offense which the 4th Circuit ruled was no crime at all.

  30. Bron:

    “They are probably right on the former, a parrot can quote Jefferson, but if he is trying to push laws like this he needs to take another look at the latter.”

    ***********************

    Took the words right out of my mouth. :D

  31. If they are so interested in legislating crimes against nature then how about stopping the rape against the environment?

  32. mespo727272,

    True, you cannot be convicted of soliciting a crime if the underlying act is not criminal. But the conduct solicited here was criminal under the crimes against nature statute and it was not constitutionally protected conduct under Lawrence. The petitioner won because the statute sweeps in a lot of conduct that is constitutionally protected under Lawrence, and the court said that the whole sodomy provision had to go as a result. But the Supreme Court has often let courts continue to enforce laws in their constitutional applications even though the law as written contemplates some unconstitutional applications. See, for example, United States v. Raines, 362 U.S. 17 (1960), authored by Justice Brennan. Notice, also, that the Fourth Circuit decision for which AG Cuccinelli seeks rehearing did not toss the whole crimes against nature statute. It just knocked out the sodomy provision, leaving the bestiality provision in place. It is unclear what principle of law allowed that particular slice but not the slice made by Virginia court. Normally, those slices are made based on severability doctrine. But the severability of a state law is a question of state law, which may be why the panel majority’s analysis glides over it.

  33. mespo727272 1, April 4, 2013 at 12:31 pm

    McDonald was thus convicted of an element that does not exist in the statute namely soliciting minors. (The alleged victim was 17 years old and above Virginia’s age of consent). Amid all the hoopla over standing and facial versus applied unconstitutionality you missed the most important part. As the 4th Circuit said,
    ————————————–
    Keep Ronald McDonald’s Big Mac away from Wendy’s hot & Juicy.

  34. Kevin C. Walsh 1, April 4, 2013 at 9:48 am

    The 4th Circuit panel majority was spot on, and the Virgina Court got it way wrong.

    The statute that is facially unconstitutional is:

    Code § 18.2-361(A) provides that: “If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.”

    (your link to Virginia Court opinion). Lawrence v Texas applies because there is no age restriction in the statute, so it is facially defective, because it makes illegal the behavior of consenting adults in its overly broad sweep.

    The 4th Circuit panel reversed and granted habeas relief, holding:

    As explained below, we are constrained to vacate the district court’s judgment and remand for an award of habeas corpus relief on the ground that the anti-sodomy provision facially violates the Due Process Clause of the Fourteenth Amendment.

    (MacDonald v Moose, PDF).

  35. A 10 year old Irish boy stands crying at the side of the road. A man passing by asks “What’s wrong, lad?” The boy says “Me ma died this morning.” “Oh how sad.” The man says. “Do you want me to call Father O’Riley for you?” The boy replies “No tanks mister, sex is the last ting on my mind at the moment.”

  36. Dredd
    1, April 4, 2013 at 4:08 pm

    The ellipses in the portion you quoted indicate that the statute contains other material. See 18.2-361. If the “crimes against nature” statute is facially unconstitutional, then Lawrence eliminated the bestiality prohibition as well–all part of the same statute. But that’s not what the Fourth Circuit held. Instead, it carved out as “facially unconstitutional” one textual provision, the anti-sodomy provision. But why cut it there? If the answer is that the case was about sodomy, not bestiality, then why not limit it to the prohibition on oral sex? The case was no more about anal sex than it was about bestiality. Once the court steps back from full facial invalidation of “the statute,” as it did, then it is implicitly engaging in severability. But the severability of a state law is a question of state law, so an erroneous severability determination by the state court cannot be the basis for habeas relief. For the Fourth Circuit’s decision to be right, there must be a holding of the Supreme Court on a question of federal law that requires the conclusion that statutes like Virginia’s have no constitutional applications. There is no such holding.

  37. The Goofy Old Perverts are at it again. Every day it’s some new sex/pregnancy/women related thing with them. It’s an illness with a mean streak. The Cooch and his like-minded brethren (in many states) have no business in office if they can’t stop thinking about sex and sex-related matters while on the taxpayer’s time. Is Virginia in such great shape that there isn’t any more pressing public business for them to attend to?

  38. Dredd 1, April 4, 2013 at 4:08 pm

    Code § 18.2-361(A) provides that: “If any person . . . carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection B.”
    ————————————————————-
    If there’s a certain order and you have firearms, that’s a class G felony.

  39. When watching the video Blouise supplied, I thought “what a bunch of cackling hens” then the pan to the chickens confirmed it.

  40. Darren Smith 1, April 4, 2013 at 7:44 pm

    When I was in elementary school I raised chickens. It was a bit of a dynamic. If one of the hens got sick, the other hens would kill it. But they would help each other raise the chicks.

  41. Malisha 1, April 4, 2013 at 5:07 pm

    What, pray tell a non-Virginian, is in Subsection B?
    ——————————————————————-

    Malisha, what is subsection B? Are you a lawyer? I’m from Oregon. I mean really.

  42. Bob Kauten 1, April 4, 2013 at 3:09 pm

    I love the idea of laws against oral sex being “facially unconstitutional.”

    Are laws against anal sex, an example of “the ends justify the means”, or just nullification of “you’ll get it in the end”?
    ==================================
    In Italy they are called innuendo laws.

    They also call “Preparation H” innuendo.

  43. Kevin C. Walsh 1, April 4, 2013 at 6:09 pm

    Dredd
    1, April 4, 2013 at 4:08 pm

    The ellipses in the portion you quoted indicate that the statute contains other material. See 18.2-361. If the “crimes against nature” statute is facially unconstitutional, then Lawrence eliminated the bestiality prohibition as well–all part of the same statute. But that’s not what the Fourth Circuit held. Instead, it carved out as “facially unconstitutional” one textual provision, the anti-sodomy provision. But why cut it there? If the answer is that the case was about sodomy, not bestiality, then why not limit it to the prohibition on oral sex? The case was no more about anal sex than it was about bestiality. Once the court steps back from full facial invalidation of “the statute,” as it did, then it is implicitly engaging in severability. But the severability of a state law is a question of state law, so an erroneous severability determination by the state court cannot be the basis for habeas relief. For the Fourth Circuit’s decision to be right, there must be a holding of the Supreme Court on a question of federal law that requires the conclusion that statutes like Virginia’s have no constitutional applications. There is no such holding.
    =========================================
    Whatever, but that is dicta.

    The bottom line is that the felony statute that applied to “any person” doomed it.

    I much prefer that to the federal courts going in and in effect rewriting state statutes for them.

    There are night classes for english composition available to neoCon legislators like everyone else.

  44. “crimes against nature” law?

    Someone should tell that idiot to watch a science show about animal sexual behaviour (e.g. bonobos).

    As always, those who blather about things being “unnatural” or “against nature” are those who are most ignorant about nature (e.g. creationists).

  45. Who anointed Virginia Attorney General Ken Cuccinelli the final arbitrator of natural law and the sexual activities between consenting adults behind closed doors?

    Virginia Attorney General Ken Cuccinelli is a small minded bigot and he and others of his ideological ilk would be right at home in the Hermit Kingdom of the Peoples Democratic Republic of Korea.

  46. @ Kevin Walsh

    “But the Supreme Court has often let courts continue to enforce laws in their constitutional applications even though the law as written contemplates some unconstitutional applications. ”

    This is true. But, it’s also true that the Supreme Court sometimes finds a law unconstitutional on its face, even if that law may have some constitutional applications. So, where does the Virginia anti-sodomy law fit? It seems to me that it constitutionally covers only sodomy with a 15-17 y/o. Lawrence makes the law unconstitutional with respect to those 18+. Virginia has a specific statute covering all sex acts with children 14 and under. So, I think it’s fair to say that the Virginia statute is unconstitutional or inapplicable in the overwhelming number of cases. In those cases, the court should not assume the legislature intended such a widely unconstitutional statute to apply to those small minority of cases. Probably even more important, as the court notes, the Supreme Court in Lawrence described the essentially identical anti-sodomy statute in Bowers as unconstitutional–not unconstitutional as applied to adults but unconstitutional period. Thus, the court follows Supreme Court precedent in finding the Virginia anti-sodomy statute unconstitutional.

  47. This reasoning is very close to what the Fourth Circuit said. But the Court in Bowers explicitly declined to consider the facial constitutionality of the Georgia law and considered it only as applied. See footnote 1.

  48. @ Kevin, footnote 1 in Bowers is simply a quote of the Georgia statute at issue. It does not support your statement in any sense whatsoever.

  49. @ Michael Val

    Your first sentence is absolutely right, and I stand corrected. I should have said see footnote 2. But having written “See footnote 1,” I’d amend it (if I could) to say “See footnotes 1 and 2.” Since I can’t amend it, I’ll have to depend on others following what my 1L civil procedure professor termed the first juridical postulate: “Read on.” Did you? If so, you might have saved us both some time by dropping your second sentence and replacing it with something like “You probably meant to refer to footnote 2.” For those who can’t be bothered to pull up the opinion, here’s the language from footnote 2 that supports an “as applied” understanding of Bowers: “The only claim properly before the Court . . . is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.” That’s from footnote 2. To see what else fell within the statute’s reach, see footnote 1.

  50. As I expected and commented in the first comment on this thread, the 4th Circuit denied the petition for rehearing en banc.

    Not one judge voted for the rehearing request.

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