According to a study by the Centers for Disease Control and Prevention, 44 percent of males and 42 percent of females between the ages of 15 and 17 have engaged in oral sex in the United States. Unless you think that teens in Virginia have a higher incidence of chastity than the national norm, this means the law could be used to prosecute children and harass gay children. That the attorney general is not currently doing so, and that he super pinky swears that he has no plans to do so, should provide zero comfort to parents of gay teenagers in Virginia, especially in light of his previous comments, including his explicit platform statements in his 2009 campaign for attorney general. At that time, he openly opposed all “homosexual acts” because “they’re intrinsically wrong.”
For what possible reason should we give Cuccinelli, or the federal courts, open-ended discretion to go after some acts of consensual sodomy, but not others—when he’s made plain that he thinks one particular class of sodomy is “intrinsically wrong?” And in light of that fact that exactly such back-from-the-dead “crimes against nature” statutes are being used right now in states like Louisiana by overzealous and vindictive police officers to openly harass gay couples, what possible reason could there be to reinstate them?
Fortunately, laws that can be applied arbitrarily and unfairly practically implore the federal courts to strike them down. That is what happened in Lawrence and that is what happened when the federal appeals court looked at Virginia’s anti-sodomy law. The very arbitrariness of Virginia’s sodomy law means Cuccinelli faces an uphill battle at the Supreme Court. It is hard to see Justice Kennedy—and the majority that struck down DOMA in June—handing the kind of crazy discretion over intimate sexual conduct that sweeps in virtually everyone in the state, to anyone, let alone the Cooch, aka the Breast Trembler.
Nobody should have been surprised when, having been turned away at the federal appeals court, Cuccinelli turned his failed legal challenge into a political campaign, launching this website, promoting his effort to enforce the state’s sodomy law. The website’s slogan is that Cuccinelli will “Keep Virginia Children Safe!” It also claims that what Cuccinelli is really defending is an “anti-child predators law” and that his opponent—who opposes the anti-sodomy law—must necessarily support pedophiles.
What is also not a surprise is that Cuccinelli would employ the federal courts to advance a personal moral agenda—and spend a boatload of taxpayer dollars in the process. He did that with his unsuccessful climate-change crusade against UVA. Nor is it surprising that Cuccinelli would use a fruitless and unwinnable lawsuit as a personal campaign ploy. After all, it was Cuccinelli who, during the Affordable Care Act litigation, called a press conference and made the ill-advised decision to bypass the federal court of appeals and file it directly in the Supreme Court; a decision met by the court with a polite “Erm. No.”
It’s hard to tell whether Cuccinelli is now begging federal courts to legislate from the bench because he needs a campaign boost, or because he really does want them to police—on an ongoing, “trust me”—basis, the private sex lives of all Virginians and the sexual conduct of all its teenagers. The first scenario is an example of the sad state of Virginia politics. The second is just plain scary. Either way, begging out-of-touch, elitist, liberal federal courts to make ad hoc decisions about which private sex acts are “unnatural” could not be a less conservative goal.