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. “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).

  2. 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.

  3. 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.

  4. 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.

  5. 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.

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

  7. 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.

  8. 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?

  9. 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.”

  10. 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).

    1. 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.

  11. 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.

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

  13. 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. 😀

  14. 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.

    1. 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.

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