Though it was Sen. Tim Kaine (D-Va.) who addressed Politics Prof. Larry Sabato’s students Wednesday, and it is former Democratic National Committee chairman Terry McAuliffe who recently nabbed the Democratic nominee for the Virginia gubernatorial race, another Virginia politician may be more likely to be on students’ minds — but for less appealing reasons.
Attorney General and gubernatorial candidate Ken Cuccinelli filed a petition last week challenging a March 12 appeals-court ruling that deemed a Virginia anti-sodomy provision unconstitutional. The “Crimes Against Nature” statute outlawed oral and anal sex between consenting adults both gay and straight. The law has been irrelevant since Lawrence v. Texas, a 2003 U.S. Supreme Court decision that found anti-sodomy laws to be unconstitutional. But Virginia kept the prohibition on the books until last month.
Cuccinelli’s petition asks for a full 15-judge court — unlike the three-judge panel that overturned Virginia’s sodomy law in March — to reconsider the sexual-conduct statute.
The appeals court last month overturned the sodomy law in the context of a 2005 case in which a 47-year-old man was convicted under the “Crimes Against Nature” provision for consensual oral sex with a 17-year-old girl. The court nullified the conviction because the sodomy law was, post-Lawrence, unconstitutional and therefore improper grounds for a conviction.
Though the attorney general’s office has framed Cuccinelli’s petition as an attempt to safeguard minors against sexual solicitation, it is telling that Cuccinelli is attempting to revive the sodomy prohibition wholesale instead of proposing a narrower version that would ban sodomy between a minor and an adult. Given the provision’s blatant unconstitutionality, it is unlikely the attorney general’s petition will go far. But his move to challenge the sodomy ruling gives University students, especially Virginia residents, ample cause for concern.
Cuccinelli attended the University, but he didn’t major in politics; if he had, it would be a toss-up as to whether, in the public sphere, he’d now be more responsible or more destructive. As attorney general he’s had a testy relationship with his alma mater. For years Cuccinelli and University leadership locked horns when he demanded the release of emails and other documents related to the research of climate scientist Michael Mann, who used to work at the University. In summer 2011 Cuccinelli issued an opinion arguing that the University had no right to stop people from openly carrying firearms on Grounds, and in 2010 he penned letters to Virginia’s public colleges and universities asking them to rescind policies banning sexual-orientation-based discrimination.
Cuccinelli has been a thorn in the University’s side as attorney general; as governor, he could do a lot more damage. His action against the sodomy ruling suggests, first, a grave misunderstanding of the proper scope of government in relation to individual freedom — why should the state tell consenting adults what they may or may not do in the bedroom? — and second, a sinister impulse toward homophobia, as sodomy statutes have historically been strategically enforced to persecute gay men. Recent polls show Cuccinelli and McAuliffe in a dead heat in the gubernatorial race. Students, particularly Virginia residents or those who might remain in Virginia after graduation, should be thinking now about how to prepare for November. If voters are paying attention, and if they think reasonably about the private liberties to which citizens are entitled, Cuccinelli’s latest dogmatic move should be enough to blow his chances.
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