Analysis: Cuccinelli’s Defending Unconstitutional Law, but Not Anti-Gay Per Se

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    Analysis: Cuccinelli appeal of big Sodomy case NOT ATTACK ON GAY RIGHTS

    by Paul Goldman

    At 200 proof-politics, we laid down the marker weeks ago: We judge strategy, not the merits. We tell the players this: there are many who consider water boarding torture, surely not in the rules. But there is also a prerequisite to being water boarded: you have to be taken prisoner.

    In a VA race for Governor, there are no prisoners. The game is a lot tougher. There is no time for water boarding. If you have to agonize figuring out your self-interest, then maybe you should be running for Governor of Gitmo.

    A key part of the 2013 strategy for those who want to defeat Mr. Cuccinelli is clearly to turn him into an anti-gay bigot. We have searched the political data base and believe, in that regard, the 2013 governor’s race here in Virginia could be a precedent setting one. Why? We at 200 proof believe such a strategy, if successful, will cost the AG the Governorship all other political factors being even. In that regard, it could be like the 1989 Wilder race credited as the pivotal campaign in the abortion debate at the state level.

    2013 could therefore be the pivotal again, only this time for use of the anti-gay strategy, potentially a very big one going forward. Thus, we at 200 proof follow all anti-gay strategy moves closely looking at both sides.

    We understand the rules of the game: politics is a contact sport. Having been the only white person willing to help Doug Wilder make his statewide history, I am no stranger to the arena here. These issues hit home to a lot of people in special ways. Either side can get burned real easy.

    It is a tough business. Today’s strategy discussion is provided to us by the Washington Post. “The appeal has gotten national attention as Cuccinelli’s gubernatorial bid ramps up” wrote their reporter today. The “appeal” that the Post writes about is the AG’s decision to ask the Federal 4th Circuit to reconsider its recent ruling in the case of Mr. William MacDonald.

    The Post quotes anti-Cuccinelli forces as saying that this appeal shows he is an anti-gay bigot, using the case to pursue some anti-gay agenda.

    So we looked up the case. The 4th Circuit overturned the 47 year male’s conviction for  criminal solicitation. It involved a 17 year old female not his wife. It is not a a case of prostitution or forcible coercion. But apparently – the facts are sketchy in the 4th circuit opinion – they did engage in an act of sodomy not due to mutual consent. Sodomy is a felony under Virginia. Thus, Billy Boy was convicted for criminal solicitation of a 17 year old female: he enticed her to commit a felony, in this case sodomy. Thus is a prima facie case of criminal solicitation.

    Neither party is gay. Secondly, the sodomy statute covers everyone, anywhere, any status or sexual orientation. Indeed, Billy Boy originally filed a police complaint charging the female victim with attacking him, and forcing him to submit to sodomy!

    Right…Billy Boy was the victim here. I should have figured. He maintained that fiction even on the stand at trial, and one assumes his wife supported this view in her testimony.

    The jury didn’t believe him. So he got convicted of criminal solicitation. 200 proof asks: Where is the anti-gay bias here?

    Billy Boy, who has an apparent history of particular interest in underage females, then started appealing his conviction, claiming the Supreme Court in Lawrence v Texas had said sodomy could not be the basis of a felony charge. Therefore, he could not be convicted for criminal solicitation in this case since there was no predicate felony. A solid legal thesis.

    After losing in all the VA courts and the lower federal court, Billy Boy finally won in the 4th Circuit, with one dissenting opinion. I have read the case, including the dissenting opinion – from a Judge appointed by President Obama.  A very thoughtful dissent. .

    My conclusion: Asking the 4th Circuit to reverse their decision is not anti-gay. The dissenting Judge would agree with me. This doesn’t mean Cuccinelli has made the right legal choice.

    Let me explain.  

    The 4th Circuit misread the Lawrence case in as much as it used that case as the basis for their overturning the MacDonald conviction. The dissenting Judge makes the same point.

    The decision in the Lawrence case couldn’t be clearer: “We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct…” declared the majority opinion.

    ADULTS. The case involved two adults, both men, engaging in an act of sodomy in the privacy of their home. The Court said further: .

    “The present case does not involve minors. It does not involve…coerc[ion]…[it] does not involve public conduct or prostitution…The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices” in private.

    How could the Court have been any clearer as to its holding? Yes, the broad discussion went much further. But in law, holdings are always to be read as narrow as possible even when a court doesn’t remind you to do it.

    The Lawrence case overruled a Texas penal statute aimed at same sex conduct. But as the language above indicates, the court didn’t decide the matter on that grounds, but on due process, adult behavior without reference to the sex of the adults. So in that sense, the decision went further than necessary to decide the actual controversy. They got it right. But it is still limited by their words. .

    So I get Cuccinelli’s appeal on Lawrence as controlling precedent. The dissenting Judge does too. Lawrence should not be used to decide this case as a matter of controlling precedent since it didn’t reach the constitutional question raised by Billy boy.

    BUT: To me, this only begs the larger question. Is the sodomy statute constitutional? NO. This is clear. The Supreme Court has made this clear in many ways in other cases even if it has not reached this precise question. The statue, as written, violates the 14th Amendment if not others.

    That is surely not debatable. It is not an enforceable criminal statute in this case.  .

    BUT THEN: There are other procedural aspects to the case, which are too boring and too complicated even if I understood them perfectly. Which I don’t. But they go to the issue of whether Billy Boy is barred from making certain arguments even if he has a valid constitutional point.

    However, I do know this: There is nothing in the Code of Virginia requiring the AG to defend the Sodomy law to the bitter end if he or she believes it is unconstitutional.

    Which it is, on its face, as the 4th Circuit decided even if using Lawrence might not be correct.

    I carry no brief for Billy Boy, he preys on underage females, there should be laws to stop him. And yes, I want an AG who is trying to stop the Billy Boys of the state from preying on underage females.

    HOWEVER: We should also want an AG who is willing to stand-down on constitutional statues and if need be stand-up the General Assembly and say they have to fix these laws, don’t just rely on the courts to do the work.

    FACTS MATTER: Based on the 4th Circuit opinion, it appears this case only got to court because MacDonald falsely accused the underage female victim of sexual assault! This in turn led to the police investigation.

    There is no anti-gay bias in the legal facts at all. There is no anti-gay basis in the prosecution of the case. There is no anti-gay bias in the AG’s defense of the conviction and the law, something AG’s do, they defend the Commonwealth.

    Cuccinelli is not defending an anti-gay legal bias. However, he is defending, even prosecuting in some respects, an unconstitutional law. 200 proof believes this is a bad strategy for an AG running for Governor to defend an unconstitutional law to the bitter end. The 4th Circuit got the big issue right, the VA sodomy is unconstitutional.

    Thus, in the end, the law can’t do what the AG says he wants to do: protect underage females from older, sexual predators.  Why not use the 4th Circuit Case as an opportunity to make that point, to finally force the GA to fix the laws so they can be used to protect our children?

    Bad laws cannot make good policy. Respect for the law is what keeps us from the jungle said Justice Holmes. Ollie got it right.

    Billy Boy ain’t worth it. He knows the police know where he lives. He still has the other convictions for misdemeanors, he ain’t challenging those, they are legal.

    As for any anti-gay bias, the 200 proof truth is this: the current VA sodomy law doesn’t hurt gays, it hurts us all.

    In life, some things are wrong: it is that simple.

    The due process clause, along with other constitutional provisions, gives us all a zone of liberty, of privacy, of whatever you want to call it.

    I thought this was a conservative principle.

    The AG isn’t being anti-gay with this appeal. But he is not being a very good lawyer in my view. And if he is playing into the  “Cuccinelli is an anti-gay bigot” mantra, 200 proof says: like we said at the start of the column, things are probably fairer at Gitmo.