Daily Beast Lies About Cuccinelli's Appeal of Sodomy Case, Scoffs at Notion He's Generally Libertarian

Ken Shepherd
October 31st, 2013 1:35 PM
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If you're a real libertarian, what should matter to you most of all is sexual freedom, all other issues be damned. That's the insulting subtext to Ben Jacobs's October 31 story at The Daily Beast, "Ken Cuccinelli's Libertarian Love Affair."

"Can the anti-sodomy candidate be the standard bearer for libertarians?" Jacobs asked in his lead paragraph, adding, "Ken Cuccinelli sure hopes so." Jacobs then misled -- and arguably lied -- to readers by charging that:

The Republican nominee for Virginia governor—who tried and failed to reinstate a ban on oral and anal sex in his home state—has been doggedly courting the party of individual liberty in a last-minute attempt to save his candidacy.

Of course that's patently false. What Cuccinelli, the state's attorney general, did do was seek to prosecute an alleged sex offender for attempting to force an underage girl to perform fellatio on him. Cuccinelli argued that the Supreme Court's decision in Lawrence v. Texas did not apply to prosecuting acts of sodomy. From the Associated Press:

WASHINGTON — The U.S. Supreme Court won't hear an appeal of a lower court ruling striking down Virginia's anti-sodomy law.

The high court on Monday refused to hear from Attorney General Ken Cuccinelli, who wanted to get the state's ban reinstated.

In March, the 4th U.S. Circuit Court of Appeals in Richmond declared Virginia's law unconstitutional.

In 2005, a judge convicted William Scott MacDonald of criminal solicitation for allegedly demanding oral sex from a 17-year-old girl. His conviction occurred two years after the landmark Lawrence v. Texas decision effectively struck down anti-sodomy laws in that state and several others.

Virginia officials said the Texas ruling did not apply to sex acts between adults and minors. The lower court rejected that interpretation and justices won't reconsider that decision.

Indeed, as noted in the writ of certiorari -- basically the document you use when you ask the Supreme Court to take up your case -- Cuccinelli's office quoted from the ruling in Lawrence v. Texas that the decision in that case did NOT address sodomy committed by someone of consenting age upon a minor, as was the case in Moose v. MacDonald:

 
QUESTION PRESENTED
 
In 2003, this Court took up the question “[w]hether
Petitioners’ criminal convictions for adult consensual
sexual intimacy in the home violate their vital interests
in liberty and privacy protected by the Due Process
Clause of the Fourteenth Amendment,” in the context of
a challenge to a Texas statute that prohibited “‘deviate
sexual intercourse with another individual of the same
sex.’” Lawrence v. Texas, 539 U.S. 558, 563-64 (2003)
(quoting Tex. Penal Code Ann. § 21.06(a) (2003)). This
Court answered that question in the affirmative, but
stressed what it was not deciding. Id. at 578. “The present
case does not involve minors. It does not involve persons
who might be injured or coerced or who are situated in
relationships where consent might not easily be refused.
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
common to a homosexual lifestyle.” Id.
 
The question presented in this case is whether the Virginia courts unreasonably applied Lawrence in determining that Virginia’s “crimes against nature” statute is not facially unconstitutional or unconstitutional as applied to an adult male’s solicitation of a minor female, outside the home, to perform oral sodomy.
This was a case not about reversing Lawrence v. Texas and the resulting unconstitutionality about the legality of oral and anal sex between consenting adults. This case was about upholding the conviction of a sex offender, something that should not be troubling to anyone, regardless of whether they are liberal, conservative, moderate, or libertarian.
 
But what's precision and journalistic integrity when you're on a roll bashing a social conservative as anti-consensual oral sex?
 
To the larger point, Jacobs seems to equate and thereby dismiss libertarianism as quintessentially concerned with issues of sexual freedom. He seems perplexed that self-identifying libertarians would look at the whole picture rather than letting Cuccinelli's social conservatism -- or in this case a cartoonish, inaccurate stereotype of Cuccinelli -- be the deal-breaker:
 
Cuccinelli’s campaign has been lagging in the polls, with the latest Washington Post/Abt SRBI poll putting him at 39% among likely voters compared to 51% for Democrat Terry McAuliffe and 8% for Libertarian candidate Robert Sarvis. Those voters won’t propel Sarvis to the statehouse—but they could make a big difference for Cuccinelli, if only he can win them over. His bet: Virginia libertarians might not like his social conservatism, but it’s got to be preferable to McAuliffe’s big-government zeal for Obamacare.
 
So he’s been touting the endorsement of free market hero Rep. Ron Paul, and at a campaign stop in Fairfax Monday, he was accompanied by Sen. Rand Paul (R-KY). The two men entered the room clutching Big Gulps, a blatant shot at New York Mayor and large-soda hater Michael Bloomberg, whose pro-gun control PAC is currently spending millions of dollars on Virginia airwaves. “I heard Mike Bloomberg wanted to buy the governor’s office down here, and I figured after he took my Big Gulp, he’d come after my guns,” said Paul.
 
The Kentucky senator then went into a generic stump speech, talking about the NSA, Guantanamo, and a variety of other issues a Virginia governor would likely have no say in. Cuccinelli followed, proclaiming that he was running a “campaign for liberty” that would “restrain the size of government.” His evidence for doing so was his opposition to gun control and Obamacare, the same pitch he’s been giving to party faithful all year.
 
The partitioned room, thickly carpeted and lit by chandeliers, was packed with more than 250 supporters, one of whom eventually fainted and had to be carried out by other attendees. Many seemed to be the usual suspects at Cuccinelli events, including older activists waving “I am with the NRA” signs and moms with gold cross necklaces and kids in tow.
 
There were some confessed libertarians in the group. Jason Bowles of Fairfax, an earnest unshaven 28-year-old wearing a blazer, insisted that “the real libertarian running is Ken Cuccinelli.” He thought Cuccinelli’s strong opposition to Obamacare made him the clear choice. Bowles said he could have seen a case to vote for Sarvis in 2009, when the Democrat and the Republican candidates, were, in his words, “milquetoast moderates”—but not this year.
 
Will Lynch, a 24-year-old from Woodbridge, cast his first ballot for Ron Paul in the 2008 primary, but was somewhat less enthusiastic about Cuccinelli. He said he was just being “more pragmatic” in his choice and didn’t have any desire to see McAuliffe as governor. Ian Campbell, a sophomore at nearby George Mason University, who volunteered in his native Vermont for the state Republican Party, echoed this. In his opinion, fiscal issues are far more important than social ones. While Campbell, who identifies as a libertarian, maintains his voter registration in Vermont, he still feels that Cuccinelli represents a far more realistic choice than the libertarian alternative.