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to Section One | to Arts & Entertainment
posted Friday, April 12, 2013 - Volume 41 Issue 15
Fourth U.S. Circuit Court of Appeals en banc rejects Virginia's attempt to revive state's anti-sodomy law
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Fourth U.S. Circuit Court of Appeals en banc rejects Virginia's attempt to revive state's anti-sodomy law

by Mike Andrew - SGN Staff Writer

The Fourth U.S. Circuit Court of Appeals has turned down an attempt by Virginia Attorney General Ken Cuccinelli to revive the state's dormant law against 'sodomy.' In an order issued April 8, the court unanimously refused to reconsider a decision by a panel of three Fourth Circuit judges finding the law unconstitutional.

Although the U.S. Supreme Court struck down so-called sodomy laws in 2003 in the historic Lawrence v. Texas ruling, Virginia's law remains on the books and Cuccinelli argued that it was still enforceable in certain types of cases, such as those involving minors.

On March 12, a Fourth Circuit panel ruled 2-1 that the statute was not enforceable, overturning a district court decision upholding the conviction of a man charged with soliciting oral sex from an underage girl. Virginia's sodomy statute outlawed anal and oral sex regardless of the gender of the individuals involved.

UNANIMOUS REJECTION
Cuccinelli then petitioned the entire Fourth Circuit to review the case. Under court rules, if no judge asks for a vote on such a petition, it is automatically denied and the panel's decision stands. Observers were surprised that even Judge Albert Diaz, who dissented in the panel's original ruling, did not ask for a rehearing.

"It's a pretty resounding rejection," said Claire GastaƱaga, executive director of the ACLU of Virginia, which filed a friend-of-the-court brief urging the three-judge panel to overturn the law. "There really wasn't any interest in doing this at all by anybody."

Cuccinelli can appeal the Fourth Circuit's decision to the U.S. Supreme Court, but his office did not respond to questions about his intentions.

"We would hope that they wouldn't [appeal]," GastaƱaga said. "We would hope that they would understand what they need to do is work to get this law off the books. But I wouldn't be surprised if they filed a petition for cert."

A "petition for cert," or writ of certiorari, is the formal method of asking the Supreme Court to take the case. At least four of the nine justices on the high court must approve certiorari for the court to agree to hear a case for consideration on the merits.

Cuccinelli argued in his Fourth Circuit brief that the Virginia case involved different legal issues than Lawrence did, and therefore it should not be bound by the 2003 ruling.

"As we stated last week, this case has nothing to do with sexual orientation or private sexual acts between consenting adults," Cuccinelli's spokesperson told the Washington Blade.

"It's about using current law to protect a 17-year-old girl from a 47-year-old sexual predator. The attorney general is committed to protecting Virginia's children from predators who attempt to exploit them and rob them of their childhood."

OTHER LAWS COULD APPLY
But the Fourth Circuit noted in its March 12 decision that the defendant could be convicted under constitutionally valid state laws against soliciting sex from a minor, rather than the unconstitutional sodomy law.

Given that the Supreme Court ruled only 10 years ago that sodomy laws represent an unconstitutional intrusion into individual privacy, it is not clear that they would accept Cuccinelli's appeal even if he filed a petition.

However, there have been significant changes in the high court's membership since the Lawrence decision. Three justices who voted with the majority - Stevens, Souter, and O'Connor - are no longer on the court. On the other side, Chief Justice Rehnquist was replaced by John Roberts.

Virginia State Sen. Adam Ebbin, who openly Gay, has said he is thinking about introducing a bill next year to repeal the state's sodomy law.

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