SCOTUS Tosses Anti-Sodomy Case

The Supreme Court got off to a promising start Monday morning when it threw away an attempt to revive Virginia’s anti-sodomy law, which were declared unconstitutional by a circuit court back in March but was championed by Ken Cuccinelli, the state’s Attorney General and Republican candidate for governor.

The statute in question is Virginia’s Crimes Against Nature law, under which consensual oral and anal sex between adults is a felony. The details of the case are thorny but worth examining, as they show how the combination of a poorly-written law and a stubbornly homophobic Attorney General resulted in the overturning of an archaic, discriminatory statute. At the end of the day, Cuccinelli was unequivocally seeking to defend the anti-sodomy laws, but in a sneaky, surreptitious manner that afforded him a veil of plausible deniability.

In 2005, a 47-year-old Virginian man named William Scott MacDonald allegedly demanded that a 17-year-old girl give him oral sex. Under Virginia law, it’s illegal for an adult to ask a minor to commit a felony, and so MacDonald was charged and convicted of doing just that.

However, the Supreme Court had already ruled in 2003 that state laws banning consensual sex between adults were unconstitutional. While the girl in this case wasn’t an adult, the only law on Virginia’s books that could be construed as outlawing oral sex between a 17-year-old an and an adult was Crimes Against Nature. But the entirety of that law had been invalidated by the Supreme Court ruling; therefore, the “felony” MacDonald had allegedly asked the girl to commit wasn’t a valid law at the time.

The appeals court agreed, and MacDonald’s convicted was overturned.

Cuccinelli argued that the law should be kept on the books as a tool to prosecute child sex predators; however — and this is crucial — he refused to update the law to comply with the Supreme Court ruling. In other words, he insisted that retaining a blanket ban on oral and anal sex between adults was the only way to protect against consensual oral sex between adults and minors. Pretty insidious, huh?

Cuccinelli felt so strongly about this that he appealed all the way to the Supreme Court, which saw through his ruse and threw out the case without comment this morning. Good.

Perhaps the clearest window into Cuccinelli’s true intent lie in a 2009 interview he gave to a Virginia Newspaper:

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.

Cuccinelli is currently running for governor under the Republican ticket, but while he was initially the overwhelming favorite in the race, he’s currently trailing Terry McAuliffe, a Clinton ally and prominent Democratic fundraiser, by five points. Today’s news probably won’t help him very much.