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.

Ten years ago this June, the Supreme Court struck down Texas’ ban on “[d]eviate sexual intercourse” in Lawrence v. Texas, declaring in the process that the law may not criminalize non-commercial sexual activity between consenting adults. As Dana Liebelson reports, however, 14 states still have anti-sodomy laws on the books nearly a decade after the Supreme Court declared them unconstitutional. These include four states — Montana, Oklahoma, Texas and Kansas — which specifically outlaw gay sex, in addition to ten other states outlawing oral or anal sex between any two partners. In 2011, Tim Murphy mapped this out:

Last week, Virginia Attorney General Ken Cuccinelli (R) filed a brief seeking to keep Virginia’s so-called “crimes against nature” law on the books. Although he claims he’s doing so merely to allow prosecutions against adults having sex with children and similar crimes, he had the opportunity to vote for such a narrow and constitutional sex ban when he was a state lawmaker. Instead, he voted to keep Virginia’s broad and unconstitutional ban on the books.

Virginia Attorney General Ken Cuccinelli II (R) filed an appeal last week after a federal appeals court struck down Virginia’s sodomy law as unconstitutional. Virginia prosecutors had charged a 47-year-old man with soliciting oral sex from a 17-year-old girl — a felony under the disputed law. But whether or not Cuccinelli’s appeal succeeds, his vote to ignore a U.S. Supreme Court ruling when he was a state Senator in 2004 helped create the uncertainty over the provisions.

In 2003, the U.S. Supreme Court’s Lawrence v. Texas ruling held that states may not ban private non-commercial sex between consenting adults. Virginia’s Crimes Against Nature statute, which made oral sex (even between consenting married couples) a felony, was clearly the sort of legislation the Court was referencing.

A year later, a bipartisan group in the Virginia Senate backed a bill that would have fixed the state’s Crimes Against Nature law to comply with Lawrence — eliminating provisions dealing with consenting adults in private and leaving in place provisions relating to prostitution, public sex, and those other than consenting adults. Cuccinelli opposed the bill in committee and helped kill it on the Senate floor. In 2009, he told a newspaper that he supported restrictions on the sexual behavior of consenting adults: “My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. … They don’t comport with natural law.” As a result, the law’s text remains unchanged a decade after the Supreme Court’s ruling.

While the state could have brought misdemeanor charges under other statutory rape laws, the prosecution instead utilized the felony provisions of the Crimes Against Nature law. Because its provisions were never updated to comply with the constitutional privacy protections, the appeals court ruling determined that the law itself is unconstitutional. Even if Cuccinelli wins, the cost in time and money to Virginia will be huge — and could have been entirely avoided had he and the Republican majority in the Virginia General Assembly not been so determined to ignore the Supreme Court.

A federal appeals court on Tuesday invalidated Virginia’s law prohibiting anal and oral sex, citing the landmark U.S. Supreme Court decision in Lawrence v. Texas that held Texas’ anti-sodomy law unconstitutional. In a 2-1 decision, the U.S. Court of Appeals for the Fourth Circuit held that the state’s provision banning “crimes against nature,” which include “’carnal knowledge’ by one person of another by the anus or the mouth” “cannot be squared with Lawrence.” The 2003 high court decision held that “statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty” in the Fourteenth Amendment’s due process clause.

Fourteen states still have sodomy laws on the books, including Texas – the state whose law was invalidated by the U.S. Supreme Court’s decision in Lawrence. While Texas notes the Lawrence decision in its penal code, it takes a full act of the legislature to repeal a statute, and the legislature’s supermajority has not let the repeal come to a vote. Four other states only criminalize sodomy if you’re gay. Although most of these statutes are rarely if ever enforced, affirmative attempts to formally repeal them have faced Republican resistance.

The legal challenge in this case involved a man accused of criminal solicitation of a minor who argued that the underlying “crimes against nature” statute on which the prosecution was based was unconstitutional. The dissenting judge, an Obama appointee, argued that the law should not be invalidated as applied to this particular defendant because Lawrence only applied to two consenting adults.

Conservative Justice Antonin Scalia routinely pretends that his approach to the law is merely to follow the clear language of the Constitution, and anyone who does not reach the same conclusions he does must be doing it wrong. In truth, however, Scalia’s rhetoric far more often just exposes how simplistic his vision of the Constitution truly is. Consider a speech he gave earlier this week at a conservative think tank:

Scalia calls himself a ‘‘textualist’’ and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.

So Scalia parts company with former colleagues who have come to believe capital punishment is unconstitutional. The framers of the Constitution didn’t think so and neither does he.

‘‘The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,’’ Scalia said at the American Enterprise Institute.

This is the opposite of true, at least for someone who claims to take the text of the Constitution seriously. Take, for example, the death penalty. The Constitution prohibits “cruel and unusual punishments,” but it provides no other guidance on just how vicious a punishment must be to become “cruel” or how uncommon it must be to become “unusual.” Does the fact that the death penalty is increasingly rare in the United States meet the threshold of unconstitutionality? The Constitution doesn’t say.

Similarly, both abortion bans and bans on particular sex acts were held unconstitutional under the Fourteenth Amendment, the relevant part of which provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” What are the “privileges and immunities of citizens?” How much “process” are people “due”? Why is it a denial of the “equal protection of the laws” for the government to refuse to hire someone because of their race or gender, but not because they performed poorly in college or have an unimpressive resume? The text of the Constitution does not answer these questions.

Scalia’s answer is that rights protected in the Constitution must be understood exactly as they were understood at the time they were ratified, but there’s also nothing in the document itself which suggests that “unusual” punishments are those that were unusual 200 years ago and not those that are unusual now, or that the amount of “process” that people are “due” is the amount that they were given in the 1860s. Indeed, if anything, the Constitution’s text suggests the opposite. The framers were perfectly capable of being very precise about which rights they wanted to protect when they wanted to be — just read the Third Amendment for an example. When they chose, for example, to use words whose scope would naturally change over time — something that is common today may be unusual 50 years from today — that suggests that they wanted the scope of those rights to match that natural process.

Of course, the Constitution doesn’t always use flowing or ambiguous language and when it speaks precisely judges are wrong to read their own preferences into language that does not support their views. Unfortunately, Scalia is hardly a model of textual loyalty in such instances. Nor is he particularly loyal to his notion that the words of the Constitution should keep the meaning the founding generation would have understood them to have. The Constitution gives Congress power to “regulate commerce … among the several states.” And one of the ratifiers of the Constitution explained in the very first decision to interpret these words that there is “no sort of trade” that the words “regulate Commerce” do not apply to and that the power to “regulate” something “implies in its nature full power over the thing to be regulated.” Yet Scalia voted to strike down the Affordable Care Act, a law that regulates trade in health care.

No one who takes the text of the Constitution seriously can reach the decision he reached in that case.