RICHMOND, Va. — Attorney General Ken Cuccinelli on Tuesday asked the U.S. Supreme Court to uphold Virginia’s anti-sodomy law, arguing that a lower court misinterpreted the scope of the justices’ 2003 decision invalidating a similar law in Texas.
If the ruling overturning the Virginia law is not overturned, Cuccinelli said, nearly 90 people convicted of sex crimes involving minors may be eligible to have their names removed from Virginia’s sex offender registry.
In a 2-1 decision in March, a panel of the 4th U.S. Circuit Court of Appeals declared that Virginia’s law against oral and anal sex is unconstitutional.
Virginia’s so-called “crimes against nature” law was the basis for a 47-year-old man’s conviction of criminal solicitation for allegedly demanding oral sex from a 17-year-old girl. In the appeal, Cuccinelli claims the Supreme Court’s Lawrence v. Texas decision applied only to sex acts involving consenting adults, not those between an adult and a minor.
He added that many other federal judges and appeals courts have recognized the Lawrence ruling’s limits.
Cuccinelli wrote that, “It appears that the Fourth Circuit is alone among courts” in ruling that the Lawrence decision applies to adult-minor sex acts as well as to acts between consenting adults.
Cuccinelli, the Republican nominee for governor, said in a written statement that “this has nothing to do with sexual orientation or private acts between consenting adults. In fact, the law can’t be used for those purposes.”
In the appeal, he asked the Supreme Court to reverse the decision without requiring written briefs or oral argument.
The appeals court’s ruling came in the case of William Scott MacDonald, who was convicted of violating a Virginia law making it a felony for any adult to order a person under age 18 to commit a felony. MacDonald claimed his conviction for that offense was improper because the underlying felony was based on an unconstitutional law. The appeals court agreed.
In the 4th Circuit appeals court’s majority ruling, Judge Robert King said the justices implied in Lawrence that a state could criminalize sodomy between an adult and a minor but that such decisions rest with legislatures, not the judiciary. Judge Albert Diaz wrote in a dissent that federal courts were required to give more deference to state courts’ interpretation of the Virginia law.
Louisa County Commonwealth’s Attorney Rusty McGuire said in a telephone interview that several sex-crime statutes are tied to the anti-sodomy law, so if the latter is unconstitutional “it’s like a deck of cards and they all fall down.”
McGuire said his prosecution of Internet child-sex predators depends on the anti-sodomy law.
“I’m completely worried about this,” McGuire said. “Something has to happen or its open season on Virginia’s children.”
The decision to appeal is certain to provide campaign fodder for Democrats who already have accused Cuccinelli and his GOP ticket mates of pursuing an anti-gay, socially divisive agenda. But Cuccinelli did not have the option of waiting until after the November election to file the appeal because Tuesday was the deadline for informing the federal district court of the state’s intentions.
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