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Virginia Attorney General Ken Cuccinelli Fights to Keep Anti-Sodomy Law on the Books

Cuccinelli: "Homosexual acts are intrinsically wrong." (Photo: Gage Skidmore)

Cuccinelli wants to make blowjobs a crime. (Photo: Gage Skidmore)

Virginia’s attorney general, who is also a Republican candidate for governor, has filed a petition in a federal court asking it to reconsider its decision to overturn the state’s unconstitutional sodomy ban.

Ken Cuccinelli filed a petition with the 4th Circuit US Court of Appeals in Richmond challenging a recent ruling that struck down the state’s unconstitutional anti-sodomy law. Under that statute, “if any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth… he or she shall be guilty of a Class 6 felony,” punishable by 1-5 years in prison, a $2,500 fine, or both.

When Virginia’s law against “crimes against nature” was first challenged in the US District Court for the Eastern District of Virginia in 1975, the court cited “ancestry going back to Judaic and Christian law” in upholding it. The federal court also cited biblical passages prescribing the death penalty for sodomy:

-Thou shall not lie with mankind as with womankind: it is abomination. (Leviticus 18:22)

-If a man also lie with mankind, as he lieth with woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them. (Leviticus 20:13)

But in the 2003 Lawrence v. Texas decision, the US Supreme Court ruled that sexual activity between consenting adults was protected by due process under the 14th Amendment. That ruling invalidated states’ anti-sodomy laws. Still, Virginia’s law remained on the books until last month.

“It is shameful that Virginia continued to prosecute individuals under the sodomy statute for 10 years after the Supreme Court held that such laws are unconstitutional,” Rebecca Glenberg of the Virginia ACLU said after last month’s ruling. “This law should bring an end to such prosecutions.”

Not if Cuccinelli gets his way. The attorney general is now asking the 4th US Court of Appeals to reconsider its decision because, according to his spokeswoman, the Lawrence decision only applies to sexual activity between consenting adults. The case in which the federal appeals court ruled involved a 47-year-old man soliciting a 17-year-old girl for oral sex.

“We believe the panel decision was erroneous, and that the dissent correctly concludes that the petitioner was not entitled to federal habeas corpus relief,” Cuccinelli spokeswoman Caroline Gibson is quoted in the Washington Blade. “So the full court should have the opportunity to decide this matter.”

ThinkProgress reports that Cuccinelli opposed a bill that would have clarified the state’s anti-sodomy law to comply with Lawrence, striking provisions dealing with sex between consenting adults while leaving in place portions banning public lewdness, sex with minors, prostitution and other offenses.

Critics argue that anti-sodomy laws are usually used to target homosexuals, a charge seemingly validated in this case by comments made by Cuccinelli himself. “My view is that homosexual acts, not homosexuality, but homosexual acts, are wrong,” he told The Virginian-Pilot in 2009. “They’re intrinsically wrong. And I think in a natural law-based country, it’s appropriate to have policies that reflect that.”

Cuccinelli’s Democratic opponent in the gubernatorial race, Terry McAuliffe, seized upon the attorney general’s support for re-criminalizing consensual sex to criticize him.

“This is just another example of Ken Cuccinelli ignoring the economy and instead focusing on his divisive ideological agenda,” McAuliffe spokesman Josh Schwerin said in an email to the Huffington Post.

Virginia recently made headlines when state lawmakers voted to repeal a 19th century ban on cohabitation and sexual relations between unmarried adults, sometimes called “living in sin.” Shockingly, 25 legislators– 21 Republicans, 3 Democrats and 1 independent– voted against the repeal.

Other states still have anti-sodomy laws on their books despite the Supreme Court’s Lawrence decision. Gay and lesbian sex is illegal in Montana. Legally married same-sex couples, and others engaging in homosexual intimacy, are committing a felony if they have sex in the state. Oral and anal sex are also banned under a Kansas anti-sodomy law that can punish offenders with up to six months behind bars and a $1,000 fine.

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