Ken Cuccinelli – The Thrust Behind Restoring Sodomy Laws

“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.” -Ken Cuccinelli

One thing I’ve learned about the Republicans is that they are bad at keeping secrets. They are like a class of 5-year-olds who have bought their first Christmas present for Mommy. Eventually, well before Christmas, someone is going to get excited and spill the beans. It happened with Mitt and his 47% slip up, and it happened with their voter suppression plan, when Pennsylvania’s GOP House Majority Leader, Mike Turzai, was recorded bragging, “Pennsylvania’s new voter identification law will allow Mitt Romney to win the state.” I suppose we should be grateful for their lack of discretion, Mitt lost big and Turzai’s comment became the centerpiece of the legal case brought to overturn Pennsylvania’s Voter ID laws.

You would think those kind of setbacks would have been enough to teach Republicans to keep news of their vendettas off the front page, but they outed themselves again recently, when North Dakota’s Governor, Jack Dalrymple, signed three new bills, making North Dakota the state with the most restrictive abortion laws in the country. Before the vote, the governor publicly warned the legislature that passing the bills they were considering, bills that unambiguously defied federal abortion law, would result in North Dakota spending millions defending legal challenges, without much hope of a good result. But North Dakota is swimming in oil money and currently has a 20 million dollar budget surplus, so the national Republican Party feels it is uniquely able to fund the legal assault on Roe V Wade. The governor’s remarks led to speculation of a possible veto, but last week, when the bills hit his desk, Governor Dalrymple acted like a man who had been reminded what was good for him by Tony Soprano’s goons. He signed. But as the governor signed the bills, he covered his ass with a Turzai-style gaff:

Governor Dalrymple announced the restrictive bills were an “attempt by a state legislature to discover the boundaries of Roe vs. Wade.”

In red states all over the country, similar laws are being passed, making clinic regulations impossible to meet, and limiting abortions to a term so early in the pregnancy many women don’t even know they are expecting. Where we go wrong as pro-choice liberals, is to think of these states as aberrations, and that the women unlucky enough to live there are the ones who are going to have to take on the fight. They most definitely are not unrelated events. They are a part of a coordinated Republican plan to get Roe V Wade back before the Supreme Court.

It seems counter-intuitive, but Republicans don’t want the women of the states under assault to accept the new restrictions, they want them to sue. The participating states have purposely used similar language in most of their anti-choice bills, because it increases their chances of getting a different decision on the same law, from different federal judges. And when the lower courts disagree on how to “interpret” one of their decisions, that disagreement practically guarantees that the Supreme Court will take up the case.

Why now? The Republican establishment, the men with their hands on the levers of power, have made a determination that the current Supreme Court is as good as it is going to get – conservative-wise. The changing demographics and their party’s lackluster performance in the last two presidential elections have them worried that the court will become more and more moderate in the next few years. They are determined to get as many of their conservative issues before this court as possible, even if it means passing laws they know are unconstitutional.

Abortion is the prime target, but it is hardly the only law Republicans are hoping they can manage to have revisited before Scalia is six feet under and Thomas spends the rest of his years curled in the fetal position on his old pal’s grave. We have already seen the Voting Rights Act, and affirmative action targeted. Now you can officially add sodomy laws to the list of decisions Republicans are trying to have re-argued.

Republicans have long hoped that if Roe is overturned, Lawrence V Texas, the decision that made it unconstitutional for states to ban sodomy, will follow. Both decisions are based on the unenumerated “right of privacy” that the Rehnquist Court found in the Constitution, a right Justice Scalia has often said he does not think the Constitution grants. So it is very possible if Roe falls on privacy grounds, so will Lawrence.

The Attorney General of Virginia,  Ken Cuccinelli, is well-known as a true believer when it comes to ending the right to privacy. When national press attention caused Virginia Governor Bob McDonnell to waffle on requiring women seeking abortions to endure a vaginal probe first, Cuccinelli was a persistent voice in McDonnell’s ear hissing, “Do it. Do it. Do it.”

Cuccinelli has been scheming for more than a decade to get Lawrence V Texas back in front of the Supreme Court. He wants this! He is running for governor at the moment, and political wisdom dictates that attorneys general step down so they can campaign full-time without the baggage of the state’s controversial litigation, but Cuccinelli has stayed on. He’s so close to reopening Lawrence he can taste it, and he doesn’t trust anyone else to take over as the battlefield commander in the Holy War for Missionary Position Only in America!

If you think I am overstating the sexual prohibitions Cuccinelli is espousing, I will let you read the Virginia’s “Crimes Against Nature” law for yourself:

18.2-361. Crimes against nature; penalty.

1. If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony.

When the Supreme Court handed down their decision on Lawrence V Texas in 2003, the Virginia legislature recognized their Crimes Against Nature statute was unconstitutional, and tried to bring it into compliance by adding a consenting adults exception. Newly elected State Senator Ken Cuccinelli led the resistance and killed the changes in committee, so all these years, if you have had so much as a blow job in Virginia, you have been guilty of a felony. No one was prosecuted under the statute of course. Prosecutors knew a conviction would never hold up on appeal. But the Crimes Against Nature statute remained active, like an undetonated mine, forgotten by everyone – but Cuccinelli.

Now, as attorney general, Cuccinelli has decided it’s time. He purposefully used the unconstitutional Crimes Against Nature Law he protected as a young state senator, to charge a man who solicited oral sex from a 17-year-old female. He had many other choices, but he chose Virginia’s Crimes Against Nature Statute so he can finally put the Lawrence decision in the spotlight.

As expected, the court rejected the Crimes Against Nature Charge, and as expected, Cuccinelli has filed an appeal. He is now on the legal trail that leads to the Supreme Court. With the Republican push to get the Court to revisit Roe and the “privacy” issue, his timing couldn’t be better.

Because of Ken Cuccinelli’s zealous pursuit of bland sex, women and gays have now become strange bedfellows in the struggle to defend the right of “privacy.” I would warn Mr. Cuccinelli not to expect either group to just roll over and take it. After all, he has made that illegal, at least in Virginia.

Photos are from Attorney General Cuccinelli’s Facebook Page

Jean Ann Esselink is a straight friend to the gay community. Proud and loud Liberal. Closet writer of political fiction. Black sheep agnostic Democrat from a conservative Catholic family. Living in Northern Oakland County Michigan with Puck the Wonder Beagle.

Follow me on Twitter as @Uncucumbered or friend me on Facebook.