SCOTUS Rejects Cuccinelli's Stay Request on Va. Sodomy Ruling

By Aditi Mukherji, JD on August 13, 2013 | Last updated on March 21, 2019

The U.S. Supreme Court has denied Virginia gubernatorial candidate and state attorney general Ken Cuccinelli's request for a stay of the Fourth Circuit ruling that struck down Virginia's anti-sodomy law as unconstitutional.

Cuccinelli had recently filed a petition with the U.S. Supreme Court urging the Court to stay the Fourth Circuit's decision while justices decide whether to hear the appeal.

AG Cuccinelli is a fan of the anti-sodomy law, and is fighting to uphold it.

Virginia Sodomy Case

The Fourth Circuit ruling was part of a case involving William Scott MacDonald, who was 47 when he was accused of having consensual oral sex with a 17-year-old girl.

MacDonald was convicted under Virginia's solicitation law that makes it a felony for any adult to order a person under 18 to commit a felony.

[Sidebar: Why no felony statutory rape, you ask? The age of consent in Virginia is 15. Having sex with someone between 15 and 18 is a misdemeanor -- a minor conviction which MacDonald didn't challenge.]

Since the underlying felony was based on Virginia's "Crimes Against Nature" (anti-sodomy) statute, MacDonald challenged his conviction, arguing the underlying felony was based on an unconstitutional law that criminalizes "crimes against nature."

In a 2-1 decision, a Fourth Circuit panel cited Lawrence v. Texas and agreed. The Fourth Circuit interpreted Lawrence broadly and held that the case makes any anti-sodomy law unconstitutional as applied to any person.

No Stay

Cuccinelli took it upon himself to file an appeal with the U.S. Supreme Court, arguing that Lawrence doesn't apply to sexual acts between adults and minors. He's characterizing the anti-sodomy law as a means to protect children, and even came up with a flashy website for it.

Cuccinelli strongly believes it's "an important tool that prosecutors use to put child molesters in jail," according to Mother Jones.

But things aren't looking good for Cuccinelli. To get the stay, Cuccinelli needed to prove the state would suffer irreparable harm if the decision isn't put on hold while the justices consider whether to hear the appeal.

Chief Justice John Roberts, acting on behalf of the entire Court, denied Cuccinelli's request, reports The Associated Press. The Supreme Court is expected to announce its decision of whether or not to hear the case either later this year or in early 2014. Until then, Virginia's "Crimes Against Nature Law" will remain unenforceable.

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