Q Toon: In Goody Hands

I do not envy the voters of Virginia. The Republican gubernatorial candidate is their Attorney General, Ken Cuccinelli, a rabid homophobe. He still wants to enforce Virginia's anti-sodomy laws, despite their being unconstitutional under Lawrence v. Texas, on the grounds that they protect children -- the lack of any mention of age in the law notwithstanding.

Also notwithstanding is Virginia's age of consent -- 15 -- which is relevant here because the specific case Cuccinelli is upset about concerns a 47-year-old man, William McDonald, arrested for having consensual oral sex with two girls aged 16 and 17 at the time. Old McDonald may be guilty of being a creep, but not of statutory rape.

While anti-sodomy laws occasionally come into play in cases like McDonald's, they have been used much more often to persecute LGBT citizens. It's useful to note what Virginia's law actually criminalizes:

Virginia outlaws consensual sexual behavior between adults with 18.2-361, "Crimes against nature." This prohibits the making or consenting to such sexual contact a Class 6 felony, punishable by a term of imprisonment not less than one year nor more than five years, or a confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.
Virginia also bans voluntary sexual intercourse between unmarried persons with code section 18.2-344 - Fornication. ...
Lewd and lascivious cohabitation is also prohibited in Virginia and is punishable as a Class 3 misdemeanor upon a first successful conviction which carries a fine of not more than $500. ...

So anyway, Cuccinelli wanted the Supreme Court to engage in what conservatives otherwise call Judicial Activism by pretending that Virginia's unconstitutional anti-sodomy laws still apply when 16-to-17-year-olds (but why stop there?) are involved.

Cuccinelli decided to appeal the case to the Supreme Court, arguing that Virginia’s anti-sodomy statute has no constitutional problem, if—as he concedes, and only if—the high court would just interpret the terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds. (Justice Kennedy left the thread of that argument hanging in his majority opinion in Lawrence.) In effect, Cuccinelli’s legal appeal asks the Supreme Court and the lower courts to ignore the clear meaning and intent of the law, to interpret it in a way that advances narrow goals he wants to advance.
Of course, Cuccinelli’s problem at the Supreme Court is that Virginia’s sodomy statute doesn’t mention age, so reading an imaginary age requirement into it is not “interpreting” the statute so much as rewriting it.

In 2004, the year after Lawrence v. Texas, there was a bipartisan effort to update Virginia's anti-sodomy law by removing the unconstitutional provisions against adults who engage in consensual sexual acts in private (leaving public sex, prostitution and so forth as criminal acts). Mr. Cuccinelli, then in the state Senate, opposed the bill in committee and helped ensure its defeat. As he told the Virginian-Pilot in 2009, "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."

Still, even if you don't like Cuccinelli's obsession with gay sex, it's hard to get enthused about the Democratic alternative, party hack Terry McAuliffe. Which is exactly how Republicans get elected. Their base gets enthused about wingnuts like Cuccinelli and his running mate, E. W. Jackson. Look for a landslide Republican victory with about 92% of Virginia citizens staying home.

And bolting the bedroom door.