No, Ken Cuccinelli's Sodomy Law Petition Doesn't Have Anything to do with Gay Rights

Posted: Apr 04, 2013 1:25 PM

Shock: Virginia Attorney General and presumptive gubernatorial nominee Ken Cuccinelli is trampling gay rights by trying to re-criminalize sexual behavior between consenting adults!  That was the shrill storyline on liberal blogs yesterday, touched off by a legal petition filed by Cuccinelli's office over a court ruling on the state's anti-sodomy laws.  Unsurprisingly, the "anti-gay" frame is a total red herring.  Cuccinelli's narrow interest in the case lies in upholding a conviction of a 47-year-old man who solicited a sexual act from a 17-year-old girl.  The Washington Post reports:

Virginia Attorney General Ken Cuccinelli has challenged a recent court ruling finding Virginia’s anti-sodomy law unconstitutional. The appeal has gotten national attention as Cuccinelli’s gubernatorial bid ramps up. A three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled on March 12 that Virginia’s “Crimes Against Nature” statute, which banned oral and anal sex, violates the due process clause of the Fourteenth Amendment. One judge dissented, agreeing with a lower court that the Supreme Court’s ruling in Lawrence v. Texas on sodomy laws applied only to consenting adults. The case in question involved a teenage girl and a 47-year-old man, William Scott MacDonald, who was convicted of soliciting a minor to commit a felony. A petition was filed on Cuccinelli’s behalf asking for the full 15-judge court to reconsider the panel’s decision. LGBT advocates have expressed disappointment, saying the law is unconstitutional and anti-gay. “This case is not about sexual orientation, but using current law to protect a 17 year-old girl from a 47 year-old sexual predator,” Cuccinelli spokeswoman Caroline Gibson said in a statement. “We agree with the dissenting opinion that the petitioner was not entitled to federal habeas corpus relief and the full court should have the opportunity to decide this matter. The attorney general is committed to protecting Virginia’s children from predators who attempt to exploit them and rob them of their childhood.” Cuccinelli agrees with the dissenting judge, Albert Diaz, who was appointed to the 4th Circuit by President Obama in 2009, who argued for deference to the Virginia Court of Appeals.  

Whatever you think of Lawrence v. Texas and sodomy laws in general, it's clear that Cuccinelli's position here has absolutely nothing to do with consenting adults or gay rights.  It's about a case involving a man pushing 50 and a high school-aged girl.  Oh, and the Attorney General's office is siding with an Obama appointee's ruling on the matter.  Those facts aside, the McAuliffe campaign ripped Cuccinelli for playing "divisive" politics:

Cuccinelli is running for governor this year against former Democratic National Committee chairman Terry McAuliffe, whose campaign picked up on the case. “This is just another example of Ken Cuccinelli ignoring the economy and instead focusing on his divisive ideological agenda,” McAuliffe spokesman Josh Schwerin said in a statement.

Yes, let's talk about the economy.  Virginia's unemployment rate is 5.6 percent and the state enjoys a substantial budget surplus thanks to the stewardship of Virginia's current governor, Bob McDonnell.  The Republican inherited a 7.2 percent unemployment rate and budget deficits from his Democratic predecessor, and has transformed the state into one of the nation's most business-friendly climates (the impending transportation boondoggle notwithstanding).  McAuliffe and Virginia Democrats hope voters will ignore McDonnell's successful record of governance, which is why they're eager to harp on the culture wars, even when there's no basis for doing so.  And the notion that Cuccinelli is "focused" on things like sodomy laws is absurd.  Unlike McAuliffe, Cuccinelli has a day job other than full-time candidate.  He was elected (overwhelmingly) by Virginia's voters to be the chief law enforcement officer in the state.  That job entails duties.  One of those duties, in Cuccinelli's estimation, is doing what it takes to protect high school girls from much older sexual suitors.  The Cuccinelli campaign slapped back at McAuliffe's distortions with a curt statement:

"It is sad and unfortunate the day has come that Democrats attack someone for protecting children from sexual predators. This case is about prosecuting a 47 year-old man who solicited sexual acts from a 17 year-old girl. It's appalling Terry McAuliffe and his cronies would stoop this low.”  

Fine.  But the Cuccinelli camp needs to understand that they're in the big leagues now, and unforced errors are going to be exploited.  I'm not talking about the merits of this particular case; I'm talking about the optics of fighting to uphold a sodomy law in the midst of an intense national debate over gay rights.  Democrats' demagogic leap was entirely predictable here.  How many low information voters will hear the nuanced details of Cuccinelli's position?  And how many will just see headlines like this?  If he's going to make a decision that will inflame public passions and present Democrats with an irresistible opportunity to push the "divisive" or "extreme" narrative, Cuccinelli and his campaign need to get out in front of it.  Don't let the Left dart in for an easy "Republicans hate gays" layup.  Cuccinelli dominated in blueish/purple Northern Virginia in 2009; he'll need to turn in a respectable performance there to win state-wide in November.  Letting Democrats define the social issues is a ticket to real problems in NoVa if Team Cuccinelli isn't more careful moving forward.

UPDATE - Josh Barro points to previous remarks from Cuccinelli on the subject of sodomy laws in general.  He'll have to explain those to voters who don't think various sexual acts between consenting adults should be barred by law -- and his intervention in this particular case, though unrelated to gay issues, opens the door.

UPDATE II - Terry McAuliffe's campaign won't say whether he supports or opposes prosecuting the 47-year-old man in this case under the sodomy laws.  They'll just attack Cuccinelli for fighting to uphold the conviction "divisive" politics.