Late last month, Virginia Attorney General Ken Cuccinelli (R) filed a petition asking the full United States Court of Appeals for the Fourth Circuit to reinstate Virginia’s “Crimes Against Nature” law, which makes oral and anal sex a felony. A three-judge panel of that same court had struck down the law, noting that it cannot be squared the Supreme Court’s decision in Lawrence v. Texas, which prohibits laws criminalizing non-commercial sexual activity between consenting adults. Yesterday, the Fourth Circuit issued an order rejecting Cuccinelli’s request. Notably, not one of the court’s judges requested a poll of the court to consider Cuccinelli’s petition, so his petition received no support whatsoever from the court’s members.
As ThinkProgress noted last week, this case involved a felony prosecution of a 47 year-old man charged with soliciting oral sex from a 17 year-old girl. While a blanket ban on oral sex is unconstitutional under Lawrence, Virginia is permitted to pass laws criminalizing sex with people who are underage. Indeed, the Virginia legislature considered a bill which would have done exactly that, by bringing the “Crimes Against Nature” law in compliance with Lawrence, in 2004. Cuccinelli voted against that bill because he wanted to keep an outright ban on gay sex on the books, even if that ban was unconstitutional.
In other words, if Cuccinelli had not refused to bring state law into compliance with the Constitution, he wouldn’t have lost his case before the Fourth Circuit.