Cuccinelli Hopes to Overturn VA’s Appeals Court Decision on Sodomy Laws
The Virginia Attorney General’s office, headed by Ken Cuccinelli, has filed a petition with the 4th circuit court hoping to challenge a March 12th ruling that struck down Virginia’s Sodomy laws.
The en banc petition aims to bring the case before a full 15-judge court to reconsider the ruling. But, according to Clair Gastañaga, Executive Directory of the VA ACLU, the specifics of the petition are based less on the merits of the case, and more on issues with federal vs. state ruling. Cuccinelli is using an anti-terrorism law that brings into question the ability of an appeals court to over-rule a state level decision, said Gastañaga. “This law (The Anti-terrorism and Effective Death Penalty Act of 1996) was meant to gut federal habeaus, what you used to challenge state decisions you felt weren’t properly decided.”
“It’s not unusual for parties to seek rehearing en banc when there is a divided decision on panel,” Gastañaga said. “But we had really hoped the Attorney General’s office would just accept the decision and move on.”
The March ruling struck down Virginia’s sodomy laws, which remained in contrast to federal sodomy laws that were struck down in 2003 in Lawrence V. Texas. Virginia had continued to charge individuals under sodomy laws in cases where people were having sex with minors, or soliciting sex in public. When challenged, the VA courts said those cases had no standing to challenge the law because the specifics of the 2003 Lawrence V. Texas dealt with consenting adults in private space, and not with minors or in public.
Appealing a loss like this is not uncommon, and in a split decision, like the 2-1 decision given in March, its even more likely to happen. And because of the conditions on the case – Williams interaction with minors – if the 4th District finds itself siding with the AG, Virginia’s sodomy laws would be back on the books.
We have a statute that has been held to be unconstitutional if applied to consenting adult private behavior, but which still reads on the books as if any oral or anal sex would be illegal, and the only person who could challenge the statute’s constitutionality on its face is a person who is prosecuted for private sex with another consenting adult, a prosecution unlikely ever to take place again.
The Virginia Attorney General’s Office did not respond to request for comment by press time.
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