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Virginia’s attorney general asks full Fourth Circuit panel to uphold the state’s “crimes against nature” law

Marriage equality Right-wing

By Scottie Thomaston

Last month, the Fourth Circuit Court of Appeals struck down the state of Virginia’s “crimes against nature” law prohibiting same-sex intimacy. The United States Supreme Court ruled in 2003 in Lawrence v. Texas that such laws are unconstitutional and it struck down Texas’ “Homosexual Conduct” law. The Fourth Circuit said the Lawrence case is controlling precedent in the case brought in Virginia, though same-sex couples weren’t involved in the latter. In several states, especially in the South, these laws remain on the books (including in Texas) and occasionally gays and lesbians have been arrested for violation of these laws.

Now, Virginia’s Attorney General Ken Cuccinelli has filed a petition with the Fourth Circuit asking them to rehear the case en banc, with the full panel of all Fourth Circuit judges.

The Washington Blade reports that Virginia’s LGBT equality organizations are saying that a petition for rehearing en banc is the wrong course of action, and Virginia’s legislature should work on a rewrite of the bill to remove its unconstitutional applications:

Parrish said Equality Virginia wouldn’t object to a careful revision by the legislature of the state’s criminal code to allow for continued prosecution of offenses such as sex with minors.

“What we’re saying is we agree with the court ruling that, in this case, the law was used unconstitutionally. The best course of action would be for the General Assembly to address that, just like they did with the cohabitation law that they took off the books this year,” he said.

“We think that’s a better recourse than the Attorney General filing another appeal and diverting precious state resources on an issue that the General Assembly should address because the court made the correct ruling on March 12,” Parris said.

Virginia State Sen. Adam Ebbin (D-Alexandria), who’s gay, said he is looking into the issue and the possibility of introducing legislation to address it.

“I’m reviewing this and will consider introducing a bill next year to repeal the Virginia Crimes Against Nature law for consenting adults,” he told the Blade.

The issue appears to be that this specific case involved an underage girl, and the Lawrence decision arguably may not apply to underage sexual activity. The Fourth Circuit’s opinion held that Lawrence struck down the sodomy law at issue “on its face” rather than simply as applied to gays and lesbians. That would mean there’s no set of circumstances under which Virginia’s law could be applied constitutionally.

Even so, courts of appeals rarely grant en banc review of their judgments, and Virginia’s LGBT equality organizations believe it’s unlikely in this case that a rehearing will be granted. It’s not clear why Virginia’s attorney general would continue to press federal courts to uphold the law given Supreme Court precedent on point on the issue. And it’s even less clear since the state legislature can easily fix the constitutional deficiencies in the law and still use it to prosecute sexual activity with people who are underage.

Virginians are essentially split on the issue of marriage equality, 46% oppose it, 45% support it; that’s within the margin of error for the poll. Attitudes are shifting rapidly on issues involving LGBT rights, even in states like Virginia, so the attorney general’s attempt to uphold the state’s anti-gay law is a fight against a rapidly changing environment.

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