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. 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.

  2. @ 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.

    • 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.

  3. @ 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.

    • @ 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.

  4. 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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