Virginia's Republican Attorney General Ken Cuccinelli is pushing for what has to be an extremely unpopular law: the re-criminalization of sodomy. That's right, no blowjobs or buttsex. Why? Probably because he thinks that those things are totally gay and only gay people do them and bad gay bad.
What he doesn't realize is that a lot of straight couples engage in the same activities. Actually, he probably does realize it, but knows that the law would be selectively enforced against gay couples, and is essentially a backdoor into criminalizing homosexuality.
Virginia's anti-sodomy law was struck down earlier this month in a 2-1 decision by the 4th Circuit, and Cuccinelli is seeking an en banc review of that decision. As abhorrent as anti-sodomy laws are, and as settled as Lawrence v. Texas is, Judge Diaz's dissent may hold water:
The majority grants MacDonald federal habeas relief on the basis that the Virginia anti-sodomy provision facially violates the Due Process Clause. The Virginia Court of Appeals, citing its own precedent, concluded that Lawrence did not facially invalidate all sodomy statutes, but rather only the application of such statutes to private, consensual sexual activity among adults. Accordingly, the Virginia Court of Appeals concluded that the Virginia anti-sodomy provision was constitutional as applied to MacDonald because his sexual conduct involved a minor. [Internal citations omitted; get the opinion here.]
And then there's some stuff about how he may be wrong, and the Supreme Court can smack Virginia around, but that the 4th Circuit should defer to the Virginia Court of Appeals on a matter of state law:
If a federal court is to grant a writ of habeas corpus to a state prisoner incarcerated under Virginia law, it needs to be more than "confident" that the underlying criminal conviction violates the Constitution. The foundation for the issuance of the writ requires a certainty, not just a likelihood, that a state court ruling "reached a decision contrary to clearly established federal law." Unlike the majority, the district court here remained faithful to that distinction in declining to issue the writ.
Obviously someone is wrong here, as is necessarily true every time there's a dissent. And, we're not going to dig into the law to try to figure out who's right. That's what SCOTUS is for. And then SCOTUSBlog to tell us what SCOTUS said. We're also not going to guess at the judge's motivations. Could he be secretly homophobic and dissent out of prejudice? Sure. But he is at least presenting a viable legal argument. Likewise the majority could be influenced by bias, or could be following what they genuinely believe to be the law.
But we will speculate about Ken Cuccinelli. There's a good chance he's had a little bit of sodomy at some time. And maybe it was a bad experience for him. In fact, it's quite likely it was a bad experience for him, because anyone who's ever followed the story of an ardent anti-gay advocate knows how the story always ends. Ken Cuccinelli is probably gay.
That makes it a little bit tougher to drop the hammer on him. His anti-gay campaigning is probably a manifestation of his own internal struggle. Most people don't feel that strongly about gays, even your typical redneck who will agree with the most homophobic stuff you can think of at the end of the day really doesn't care. The people who do care are the ones fighting their nature because for them homosexuality is an issue that dominates their own lives, and so they think the rest of the world is as concerned as they are. If I, a straight man, want to suck Governor McDonnell's dick so bad, the gay agenda must be dangerously close to corrupting everyone!