Supreme Court Smacks Down Ken Cuccinelli’s Sodomy Law Appeal

The U.S. Supreme Court announced Monday that it would not hear Virginia Attorney General Ken Cuccinelli II’s (R) appeal of a lower court ruling that held that the state’s sodomy ban is wholly unconstitutional. Cuccinelli had made his defense of the law an issue in his campaign for governor.

Virginia’s archaic Crimes Against Nature law made oral and anal sex a felony — even between consenting adults in the privacy of their bedroom. In 2003, the Supreme Court held in Lawrence v. Texas that sodomy bans like Virginia’s violated the Due Process Clause of the 14th Amendment.

In 2004, a bipartisan group in the Virginia General Assembly proposed updating the law to comply with the Supreme Court’s ruling, by 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, then a state senator, opposed the bill in committee and helped kill it on the Senate floor. In 2009, he told a newspaper that he supported keeping 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 remained unchanged a decade after the Supreme Court’s ruling.

In May, a federal appeals court overturned the conviction of William Scott MacDonald, who had been charged under the Crimes Against Nature law with demanding oral sex from a 17-year-old girl. Cuccinelli argued in his appeal — and on a campaign website — that the law no longer applies to consenting adults but was still valid for “sex offenses attempted or committed against minors, against non-consenting adults, or in public.”


A spokesman for Cuccinelli noted that the appeal had been “to save a tool Virginia law enforcers use regularly to prosecute child predators,” and that it “couldn’t be used against consenting adults acting in private.” But, because he and his allies refused to update the bill, now it cannot be used to prosecute anyone. As a result, Cuccinelli notes, 90 sex offenders may now be dropped from Virginia’s sex offender registry.

This is not Cuccinelli’s first high-profile legal defeat as attorney general. His legal challenge to the Affordable Care Act, his attempt to block EPA regulation of greenhouse gases, and his fishing expedition into a former University of Virginia climate scientist have all been defeated by the courts.