The Virginia’s AG’s office, headed by conservative activist Ken Cuccinelli, had filed an appeal en banc to the 4th district’s ruling, which would have brought the case before a full 15 judge panel. The District court clerk said the appeal was indeed denied and that “No judge requested a poll,” effectively killing the AG’s appeal.
Greg Nevins, a lawyer with Lambda Legal, said denying an en banc hearing like this is not uncommon.
“Trying to get a rehearing en banc is about as much a long shot as trying to get a hearing at the Supreme court, so this was kind of a Hail Mary pass in of itself.”
Taking this case to the U.S. Supreme Court would be Cuccinelli’s next step, but Nevins said it’s hard to imagine high court even accepting it.
“To say ‘hey, the Sodomy law we struck down 10 years ago should be allowed to have some vitality,’ I just can’t imagine the Supreme Court to be interested in that. I don’t think it would be likely to be successful,” said Nivens.
The case in question involved William MacDonald engaging in sex acts with two girls, aged 16 and 17.
Virginia, despite the Supreme Court’s 2003 Lawrence V. Texas decision which allows sex acts in private spaces between consenting adults, had continued to charge individuals with sodomy in cases involving sex with minors, or sex in public.
MacDonald challenged his sodomy charge, and the 4th Circuit ruled in his favor, striking down Virginia’s sodomy laws, in a 2-1 decision.
In an opinion written by Judge Robert King, one of the district judges that heard the MacDonald case, he suggests Virginia’s General assembly should be the ones removing the Sodomy law, or re-defining it. “The anti-sodomy provision does not mention the word “minor,”” wrote King, “nor does it remotely suggest that the regulation of sexual relations between adults and children had anything to do with its enactment.”
Nevins agreed with this opinion, saying, beyond the unconstitutionally of sodomy laws, Virginia’s law is not specific enough to be enforced without conflicting with constitutional precedent.
Cuccinelli’s office denied to comment for this story.