RICHMOND, Va. — Virginia Attorney General Ken Cuccinelli has filed a petition with the U.S. Court of Appeals for the Fourth Circuit, challenging a recent court ruling that struck down Virginia’s sodomy laws.
The en banc petition aims to bring the case before a full 15-judge panel to reconsider the March 12 ruling.
But, according to Clair Gastañaga, Executive Directory of the Virginia ACLU, the specifics of the petition are based less on the merits of the case, and more on issues with federal vs. state ruling.
Cuccinelli is using an anti-terrorism law that brings into question the ability of an appeals court to overrule a state level decision, said Gastañaga. “This law (the Anti-terrorism and Effective Death Penalty Act of 1996) was meant to gut federal habeaus, what you used to challenge state decisions you felt weren’t properly decided.”
“It’s not unusual for parties to seek rehearing en banc when there is a divided decision on panel,” said Gastañaga. “But we had really hoped the Attorney General’s office would just accept the decision and move on.”
Virginia had continued to charge individuals under sodomy laws in cases where people were having sex with minors, or soliciting sex in public. When challenged, the Virginia courts said those cases had no standing to challenge the law because the specifics of Lawrence v. Texas dealt with consenting adults in private space, and not with minors or in public.
Equality Virginia, the state’s largest LGBT advocacy group, condemned Cuccinelli’s request.
“The Supreme court has already made a ruling, striking down sodomy laws back in 2003, and we question why the AG is spending his time on this when there are other priorities to attend to,” said Equality Virginia, in a statement. “Now it’s time for the Virginia General Assembly to go ahead and take these laws off the books since they have already been deemed unconstitutional… twice.”
The Virginia Attorney General’s office did not respond to request for comment.