The Fourth Circuit U.S. Court of Appeals in Richmond issued an order on Monday denying a petition by Virginia Attorney General Ken Cuccinelli asking the full 15-judge court to reconsider a decision by a three-judge panel last month that overturned the state’s sodomy law.
In an action that surprised some court observers, the order says none of the court’s judges requested a poll among themselves to determine which, if any of them, favored Cuccinelli’s request for an en banc rehearing of the sodomy case by the court’s 15 active judges and one senior judge.
Among the judges that chose not to approve a rehearing was Judge Albert Diaz, who wrote the dissent in the three-judge panel’s 2-1 ruling declaring Virginia’s “Crimes Against Nature” statute unconstitutional. The statute classifies sodomy between consenting adults, gay or straight, as a crime.
“It’s a pretty resounding rejection,” said Claire Gastanaga, executive director of the ACLU of Virginia, which filed a friend of the court brief urging the three-judge panel to overturn the state sodomy law. “There really wasn’t any interest in doing this at all by anybody.”
Cuccinelli’s press spokesperson, Brian Gottstein, couldn’t immediately be reached for comment on whether Cuccinelli plans to petition the U.S. Supreme Court to take the case, which would be the last remaining step to challenge the appeals court ruling.
“We would hope that they wouldn’t,” Gastanaga said. “We would hope that they would understand what they need to do is work to get this law off the books. But I wouldn’t be surprised if they filed a petition for cert.”
Gastanaga was referring to the process for taking a case before the Supreme Court through the filing of a petition for a Writ of Certiorari. At least four of the nine justices on the high court must approve certiorari or “cert” in order for the court to accept a case for consideration on the merits.
The March 12 ruling by the three-judge panel of the Fourth Circuit appeals court overturned a lower court decision upholding the conviction of a 47-year-old man charged in 2004 with soliciting a 17-year-old woman to engage in oral sex on grounds that the sodomy statute is unconstitutional. No sexual encounter took place, according to court records.
Cuccinelli’s office argued in its 21-page petition for a rehearing that the Supreme Court’s 2003 Lawrence v. Texas decision overturning state sodomy laws didn’t apply to cases involving minors. However, Fourth Circuit Court of Appeals Judge Robert King, who wrote the majority opinion, said the Lawrence decision rendered the Virginia sodomy statute “facially” or completely unconstitutional.
King stated that other laws could be used to prosecute an adult for engaging in sex with a minor and that the state legislature would likely have authority under the Lawrence decision to pass a new law specifically outlawing sodomy between an adult and a minor.
Virginia State Sen. Adam Ebbin (D-Alexandria), who’s gay, has said he is considering introducing a bill next year to repeal the Crimes Against Nature law for consenting adults.