Cuccinelli Seeks Refersal of 4th Circuit Ruling Striking Down Virginia's Sodomy Statute

Two things are always a constant with GOP gubernatorial candidate Ken "Kookinelli" Cuccinelli:  (1) He will contest any law or court ruling that he doesn't like, and (2) he will always do the bidding of the Christofascists who seek to impose their hate and fear based version of morality on all citizens.  By filing a petition for hearing en banc challenging the ruling by the U. S. Court of Appeals for the  4th Circuit, Cuccinelli is holding true to both of these constants.   First, by filing a petition for rehearing en banc, Cuccinelli is furious with the Court's striking down of the botched prosecution of William Scott MacDonald based on Virginia's sodomy statute - which makes anal and oral sex between people of any sex and any age a crime.  Second, he is being true to the Christofascists who find any form of sex other than the so-called missionary position between individuals of the opposite sex abhorrent and sinful.  Especially if the individuals involved enjoy it.

For background, in 2003 the U.S. Supreme Court in Lawrence v. Texas struck down Texas' sodomy statute and by extension Virginia's sodomy statue a/k/a crimes against nature, statute as well.  During the 2004 session of the Virginia General Assembly an effort was made to amend the Virginia statute in light of the ruling in Lawrence.  As Think Progress reports, leading the charge against amending the bill was Kookinelli Cuccinelliwho  opposed the bill in committee and helped kill it on the Senate floor. Indeed, in 2009, he told a newspaper that he supported restrictions on the sexual behavior of consenting adults: 

“My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. … They don’t comport with natural law.” As a result, the law’s text remains unchanged a decade after the Supreme Court’s ruling.

Four years later, Kookinelli still wants to restrict the conduct of consenting adults and in his petition argues a great deal of legal minutia rather than admit that MacDonald could have been and should have been prosecuted under a different Virginia statute.  The only reason the sodomy statute was used was because it carried harsher penalties.   Now, despite the botched prosecution of MacDonald who solicited sex with a 17 year old of the opposite gender, wants the 4th Circuit to reverse itself and uphold the sodomy statute despite the ruling in Lawrence.  BuzzFeed has this summary:
 

Although most people think sodomy laws have been unconstitutional since the Supreme Court's 2003 ruling in Lawrence v. Texas, Virginia Attorney General Ken Cuccinelli would like to explain why — in his view — that's not so.

What's more, he wants the 4th Circuit Court of Appeals to agree with him and uphold the constitutionality of Virginia's sodomy law — which makes anal and oral sex between people of any sex a crime — in the process.

Cuccinelli last week asked the full appellate court to reverse a three-judge panel's decision and uphold the application of the law in a criminal prosecution against William Scott MacDonald .  .  .  . 

In considering Cuccinelli's argument, the [three member panel] appeals court discussed the various ways courts attempt to "save" statutes from being found unconstitutional by interpreting them narrowly but also noted that the Supreme Court has warned about "the dangers of too much meddling" because that would mean the judicial branch has taken over the role of the legislative branch. New laws can be passed in certain situations that might be constitutional even where a previous law cannot be "saved."

The court concluded that Virginia's sodomy law after the Lawrence decision is such a law, writing, "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." 

Because they found it to be facially unconstitutional, that means it is unconstitutional in all situations and could not be used to convict MacDonald of the solicitation crime.

Cuccinelli writes that "a reasonable state court could conclude that Lawrence did not wholly invalidate Virginia's sodomy statute."

Of course Cuccinelli ignores the challenge of finding a "reasonable state court" that would not agree with him given the manner in which the GOP controlled General Assembly has packed the state courts in most instances with far right judges.

Compounding the circus like aspects of the petition for rehearing is the fact that even if Cuccinelli succeeds, the cost in time and money to Virginia will be huge.  More significantly, it all could have been avoided had Cuccinelli and his fellow puppets of the Family Foundation in the GOP majority in the General Assembly not deliberately ignored the Supreme Court ruling in Lawrence v. Texas. 

A second irony is that I can only think that Terry McAuliffe and the Democrats are clinking champagne glass at Cuccinelli's batshitery.   If they wanted help painting Cuccinelli as the extremist that he is in fact, they could not have picked a better example than this petition for rehearing en banc.  It may play well among the Christofascists and the inhabitants of Teabagistan, but rational voters will likely be appalled.

For a final irony is that studies at the University of Georgia confirmed that the most vociferous homophobes are the ones most aroused by gay porn.  Given Kookinelli's hysterical homophobia and the as yet undocumented claims that he may be another Ed Schrock, perhaps his fixation on the sodomy statute tells us something else.  As for those unconfirmed reports, if anyone is willing to bring forth witnesses willing to provide credible information and sworn statements against Cuccinelli, please come forward.  Nothing would give me more pleasure in taking Cuccinelli down the way Ed Schrock was taken down as a closeted hypocrite.