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.
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.