Ken Cuccinelli, Virginia’s attorney general, has garnered more than his share of national attention over the years, with high-profile legal crusades against global warming researchers, Obamacare, and abortion clinics. But it’s his recent war on consensual sodomy in the commonwealth that has raised the most eyebrows as the gubernatorial candidate has made the issue a centerpiece of the final months of his campaign.
His critics, including the ladies of The View and Jay Leno, have responded to Cuccinelli’s quest to reinstate Virginia’s anti-sodomy or, “Crimes Against Nature” law, with snickers and winks. The law is plainly unconstitutional—according to both a 2003 U.S. Supreme Court decision and a federal appeals court—and giggling about the attorney general’s creepy preoccupation with Virginians’ consensual oral sex makes for an easy comic target. But that focus obscures the real—even original—sin undergirding Cucinelli’s latest legal push: It’s a call for judges to read statutes to mean what they don’t say; a call for outright judicial activism, for freewheeling judicial interpretation—qualities legal thinkers on the right usually deplore.
The media focus on the giggliness of the subject-matter in question has obscured the audacity of the legal notion being advanced: That judges should read statutes the way they might read an optometrist’s eye chart—with a squint, a hand over one eye, and a prayer.
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 in 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.
The legal position Cuccinelli pushes creates truly bizarre results, which is normally a sign for reviewing courts that something smells funky. Asking a federal court to turn a state anti-sodomy law into an anti-statutory rape law means that if MacDonald had engaged in ordinary intercourse with a 17-year-old girl every day for a month, he would not face a felony conviction or be a sex offender. He’d just be that guy. But his decision to solicit oral sex, even his decision to just phone her and ask for it, under the imaginarily rewritten law, requires both.
Cuccinelli’s proposed revision to Virginia’s sodomy law would also mean that those older than 15 can legally consent to sex, yet, have no right of sexual privacy in actually having sex. Or, to put it differently, Virginia could charge any 16- and 17-year-old with felony sodomy simply because they happened to choose oral or anal sex over vaginal sex. That’s a scary prospect for all parents in Virginia, but especially for those parents raising gay teens. Leaving a statute of that sort on the books doesn’t protect children over the age of consent. It criminalizes their choice of conduct and leaves the state to decide when it’s benign.