As has been widely reported, Virginia AG Ken Cuccinelli, the Republican candidate for governor, is trying to revive that state’s sodomy law, struck down in 2003 along with all similar laws, and is asking the courts to help him. And he’s pretending that it has something to do with pedophilia, which it doesn’t. Dahlia Lithwick explains the history of the case and how unprincipled Cuccinelli is being on it.
It has long been the mantra of Republican politicians that judges—especially elitist federal judges—should never, ever legislate from the bench. Now consider Attorney General Cuccinelli’s approach to Virginia’s sodomy law. The anti-sodomy statute, 18.2-361, applies to “any person” that “carnally knows any male or female person by the anus or by or with the mouth.” Yes. It bans all oral and anal sex. And for those who partake, the legal consequence is a felony conviction, possible imprisonment, and lifelong status as a sex offender.
The sex offender is this case was William MacDonald, a 47-year-old man who solicited oral sex from a 17-year-old woman. (No sex was had). Because 15 is the legal age of consent in Virginia, authorities couldn’t charge MacDonald for statutory rape. Faced with other statutes to choose from, they opted to charge him with soliciting a minor by inducing her to commit sodomy, for which he served a year in prison and must now register as a sex offender.
In March, the federal court of appeals struck down the Virginia sodomy law and threw out MacDonald’s conviction for reasons clear to anyone who’s ever watched Ally McBeal. Lawrence v. Texas, the 2003 Supreme Court decision about Texas’ anti-sodomy statute, held that states can’t regulate private consensual sexual activity amongst adults. The court of appeals’ position, that state anti-sodomy laws simply do not survive post-Lawrence, is the same position taken by attorneys general in other states, including the prior Virginia attorney general. That should end it, right?
But even with the tide of legal authority against him, Cuccinelli decided to appeal the case to the Supreme Court, arguing that Virginia’s anti-sodomy statute has no constitutional problem, if—as he concedes, and only if—the high court would just interpret the terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds. (Justice Kennedy left the thread of that argument hanging in his majority opinion in Lawrence.) In effect, Cuccinelli’s legal appeal asks the Supreme Court and the lower courts to ignore the clear meaning and intent of the law, to interpret it in a way that advances narrow goals he wants to advance.
Of course, Cuccinelli’s problem at the Supreme Court is that Virginia’s sodomy statute doesn’t mention age, so reading an imaginary age requirement into it is not “interpreting” the statute so much as rewriting it—a freewheeling position normally anathema to Tea Party conservatives like Cuccinelli. Moreover, the Virginia legislature actually tried to rewrite the law to salvage it for narrower purposes after the Lawrence decision, but Cuccinelli helped kill that bill. You can’t really stagger around swinging a huge, unwieldy legal mallet and claiming it’s the only tool you have against pedophilia. Not when you opted to turn down the offer of a scalpel.
Sure you can. You just have to lie a lot, which Cuccinelli has no problem doing.