Mojo - April 2013

More on Cuccinelli's Defense of Virginia's Anti-Sodomy Law

| Thu Apr. 4, 2013 3:38 PM EDT

I should elaborate a bit on yesterday's story about Virginia Attorney General Ken Cuccinelli's request for a rehearing on the state's anti-sodomy law, which has gotten a lot of attention online. A three-judge panel of the US Court of Appeals for the 4th Circuit ruled that the state's "Crimes Against Nature" law, which forbids anal and oral sex, whether practiced by straight or gay people, is unconstitutional. But the AG wants the full 15-judge appeals court to hear the case again.

Cuccinelli's spokeswoman said Wednesday that the case "is not about sexual orientation," but about "using current law to protect a 17 year-old girl from a 47 year-old sexual predator."

This specific case deals with a man who was prosecuted under the "Crimes Against Nature" statute for having had oral sex with women, a felony offense under that law. The man in the case, William MacDonald, was in his late 40s when he was charged with having consensual oral sex with two young women who were, at the time, ages 16 and 17. While that might be seen as creepy, in Virginia, the age of consent is 15 years old. It is considered statutory rape—a felony offense—to have sex with anyone under that age. Under state law, an adult can be prosecuted for "causing" delinquency by having sex with someone between the ages of 15 and 18, but that is only a misdemeanor. MacDonald was convicted of such a misdemeanor, and his lawyers aren't challenging that conviction. But they have challenged—so far, successfully—the state's attempt to prosecute him for violating the "Crimes Against Nature" law.

Because Virginia still has this anti-sodomy law on the books, the state wants to use it against MacDonald and win a felony conviction. The state, however, couldn't prosecute him under this statute if he had engaged in vaginal sex. That is, the state is trying to use a loophole in the law that makes oral, but not vaginal, sex a felony in order to go after this guy. The court of appeals determined that MacDonald could not be prosecuted under this law because the US Supreme Court ruled in 2003 that such laws are an unconstitutional "intrusion into the personal and private life of the individual."

If Cuccinelli's concern is sex with minors, he should focus on changing Virginia's age of consent rules, not defending a law that the Supreme Court has said is indefensible. But in 2004, when a bipartisan group of Virginia legislators tried to change the law so that it would only apply to public sex, sex with minors, and prostitution, Cuccinelli opposed the bill. "My view is that homosexual acts, not homosexuality, but homosexual acts are wrong," he told a local paper in 2009. "They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. … They don’t comport with natural law."

My colleague Adam Serwer has more on Cuccinelli and the crimes against nature law.

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Cuccinelli Campaign Won't Say If He's Committed Any Crimes Against Nature

| Thu Apr. 4, 2013 3:38 PM EDT
Virginia Attorney General Ken Cuccinelli at the Values Voters Summit in 2011

The campaign of Virginia state attorney general Ken Cuccinelli won't say if he's committed any crimes against nature.

Cuccinelli, who is running to be Virginia's next governor, recently petitioned a federal court to reverse its ruling that the state's archaic "Crimes Against Nature" law is unconstitutional. That statute outlaws oral and anal sex between consenting adults—gay or straight, married or single—making such "carnal" acts a felony. The law is unconstitutional because of the Supreme Court's ruling in Lawrence v. Texas, which invalidated such "anti-sodomy laws" across the country.

As my colleague Kate Sheppard notes, Cuccinelli's office claims that it is appealing the decision because the state's regular statutory rape law doesn't allow it to pursue the harshest punishment against a 47-year-old man who solicited oral sex from teenagers (who were above the age of consent at the time). But as Josh Israel recounts at ThinkProgress, Cuccinelli helped kill an effort to reform the Crimes Against Nature law in order to make it comply with the Supreme Court's ruling in Lawrence, possibly because the proposed law didn't focus on homosexuality. "My view is that homosexual acts, not homosexuality, but homosexual acts are wrong," Cuccinelli said in 2009. "They're intrinsically wrong. And I think in a natural law-based country it's appropriate to have policies that reflect that…They don’t comport with natural law."

If Virginia's ban on "unnatural" sex acts applied nationwide, the Virginia law would make 90 percent of men and women in the United States between the age of 25 and 44 criminals. Here's a chart from the National Center on Health Statistics on sexual behavior in the US:

Violating Virginia's Crimes Against Nature statute was a class six felony in the state, and carried a penalty of between one and five years in prison. The Virginia Department of Corrections only has a capacity of around 30,000. Given that 64.6 percent of Virginia's 8 million residents are between the ages of 18 and 65, the state most likely lacks the prison capacity to house millions of Virginians who, in Cuccinelli's view, have committed crimes against nature.

But what about Cuccinelli and his aides? Mother Jones asked his campaign if Cuccinelli or anyone working for his campaign had ever engaged in any of the prohibited conduct and whether Cuccinelli would fire any campaign staff who had done so. We have received no response. But if Cuccinelli's campaign is being run by criminals against nature, don't the voters have a right to know?

Mark Follman on MSNBC: The NRA's Phony School Shooting

Thu Apr. 4, 2013 3:34 PM EDT

When the National Rifle Association unveiled its 225-page report for safeguarding school children, it cited a recent massacre in Minnesota as part of its rationale for arming and fortifying America's schools. But as senior editor Mark Follman reported, the massacre that the NRA presented as evidence does not actually exist. Watch him discuss that and other dubious aspects of the gun lobby's report with MSNBC's Lawrence O'Donnell:

Read our full special report on gun laws and the rise of mass shootings in America.

Mark Follman is a senior editor at Mother Jones. Read more of his stories and follow him on Twitter.

We're Still at War: Photo of the Day for April 4, 2013

Thu Apr. 4, 2013 12:47 PM EDT

Sgt. Justin R. Pereira, from Gooding, Idaho, and Laika 5, a Tactical Explosives Detection Dog with 2nd Battalion, 23rd Infantry Regiment, provide security as Afghan Border Police break ground on a new checkpoint March 25, in Spin Boldak district, Kandahar province, Afghanistan. U.S. Army photo by Staff Sgt. Shane Hamann, 102nd Mobile Public Affairs Detachment.

 

Charts: Look At How Badly Obama Lags on Judicial Appointments

| Thu Apr. 4, 2013 11:02 AM EDT

Last week, President Obama withdrew his judicial nominee for the powerful DC Circuit Court of Appeals—which hasn't had a nominee confirmed since 2006—because Republicans threatened to filibuster her. This high-profile battle is just the tip of the iceberg. Because of Republican obstructionism, the Obama administration's lackadaisical pace of nominations, and problems with the Senate confirmation process, more federal judgeships are staying vacant nationwide under this president than under President Bush, and Obama's nominees are taking longer to get confirmed.

During Obama's first term, the number of appeals court vacancies rose from 14 to 17. During Bush’s first term, by contrast, appeals court vacancies dropped from 27 to 18. Because Obama has been slower to nominate than Bush or Clinton, the average number of days from the opening of a seat to a nomination increased by 44 percent between Bush's and Obama's first terms.

This graph, by the data visualization shop Remapping Debate, shows the average number of vacancies per year, starting in 2001 (scroll to view all years, and hover over for details):

When the president finally does nominate someone, the Senate is generally reluctant to confirm her. Obama has 15 judicial nominees waiting for Senate floor votes right now. Overall, his judicial nominees wait an average of 116 days on the Senate floor for a vote—three times longer than Bush’s average judicial nominee wait time. When the 112th Congress ended in December, the Senate had approved 175 of Obama's judges. By contrast, Bush had 206 judges approved in his first term, and President Clinton had 204.

The figure below, also by Remapping Debate, compares Bush and Obama's first terms, showing the average number of days between vacancy and nomination, and the number of days nominees were pending before the Senate.

Why is the GOP so obstinate on confirmations? Senate Republicans may be giving Democrats a little payback. "Republicans don’t think Bush’s nominees were treated fairly," Russell Wheeler, a fellow at the Brookings Institution, which has tracked the phenomenon, told Bloomberg News on Wednesday.

Confirmation of a nominee to the DC circuit court, which is one step below the Supreme Court, is particularly important for Obama's second term because the court handles all disputes related to regulations and executive actions. "With legislative priorities gridlocked in Congress, the president’s best hope for advancing his agenda is through executive action, and that runs through the D.C. Circuit," Doug Kendall, president of the Constitutional Accountability Center, told the Washington Post Tuesday.

Right now that court is conservative-dominated, with four Republican and three Democratic appointees, and four vacancies (twice as many as any other court of appeals). This configuration didn't work out so well in the Obama's first term. The DC circuit court blocked EPA air pollution rules and put a hold on cases related to workers' rights.

Of the DC circuit confirmation, Kendall says "There are few things more vital on the president’s second-term agenda."

Occupy the Department Of Education Returns to DC

| Thu Apr. 4, 2013 6:20 AM EDT
Protesters from Occupy DOE

Most of the Occupy movement has petered out a year and a half after it exploded in New York’s Zuccotti Park. But one small segment of that movement is rallying in DC this week to focus attention on the evils of “corporate education reform.”

Liberal education luminaries including Diane Ravitch, a former assistant education secretary, and Central Park East schools guru Deborah Meier, will be in Washington as part of a four-day “Occupy the Department of Education” event organized by United Optout, a group that came together last year in the flurry of other Occupy Wall Street events. They’ll be part of non-stop speechmaking from teachers, educators, students, and parents, decrying such things as high-stakes testing and the move towards privatizing public education.

The focus on the Department of Education is intentional. Liberal school advocates are deeply unhappy with President Barack Obama’s education reform agenda, which Peggy Robertson, one organizer of this event, calls “No Child Left Behind on steroids.” Robertson, a veteran teacher from Colorado, says that Obama’s education agenda has “opened the door” to the privatization of public education. His Race to the Top initiative is one of the protest’s primary targets.

Robertson says that this initiative, which has created a competition among states for a large pot of new education funding, requires states to accept certain conditions to receive the new money. These conditions include implementing the Common Core standards, a set of new, national guidelines outlining what students should be expected to learn. (The Occupy activists oppose the standards, which they believe deprive teachers of flexibility and creativity in the classroom by dictating what material they need to cover.) Race to the Top grant recipients are also required to allow more charter schools, create a longitudinal database full of student information to track performance, and tie high-stakes testing to teacher evaluations.

All of these things, Robertson contends, create a windfall for big companies seeking a piece of the enormous public education budget and smother creativity in the classroom. (The Occupiers aren’t the only ones obsessed with the Common Core standards. Glenn Beck has been on a tear against them, too, calling them a form of “leftist ideology” that is “dumbing down schools across the country.”)

The Occupiers descending upon the Education Department this week are trying to draw attention to all of this, along with the rash of public school closings going on around the country, most notably in Chicago and Washington. Robertson recognizes that it’s a tough task. “Most of mainstream media ignores everything we say,” she admits. Last year they had only about 100 people at their rally. This year, she’s hoping for at least a thousand, which isn’t much for a DC protest. But Robertson thinks it’s important to try to present an alternative to the sweeping corporate reform effort. “What’s scary," she remarks, "is how fast it’s happening.”

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Alabama Bill Could Shut Down All Abortion Clinics in State

| Wed Apr. 3, 2013 6:24 PM EDT
A pro-choice rally in Mississippi, January 2013.

The Alabama legislature passed a bill on Tuesday that will heavily restrict abortion, potentially shutting down all five of the state's abortion clinics. The state House and Senate passed the bill by votes of 68-21 and 22-10 respectively, and Governor Bentley is expected to sign it soon.

One of the bill's sponsors, Rep. Mary Sue McClurkin, argued in February that this new law was necessary to protect women because "abortion removes the largest organ in a woman's body." 

That comment was neither scientifically accurate nor did it explain what Alabama's Women's Health and Safety Act is designed to do, so here it is: The bill, which copies legislation passed in Mississippi in 2012, mandates that doctors at abortion clinics have admitting privileges at local hospitals. This gives local hospitals the leeway to flat-out deny doctors these privileges. The doctors at Mississippi's last abortion clinic, for instance, were rejected at all seven hospitals they approached for admitting privileges.

One of the bill's sponsors argued the law was necessary to protect women because "abortion removes the largest organ in a woman's body." 

"[The hospitals] were clear that they didn't deal with abortion and they didn't want the internal or the external pressure of dealing with it," Mississippi clinic owner Diane Derzis told the Associated Press in February.

"The reality is the hospital's decisions will be based on ideology and politics" in Alabama, Nikema Williams, vice president of Planned Parenthood Southeast, told Mother Jones. "A lot of boards for public hospitals are appointed by the state."

In Mississippi, litigation filed by the Center for Reproductive Rights has kept the clinic open for now: Last July, a judge blocked the state from penalizing the doctors while they try to secure the new privileges, buying the clinic more time. Williams says she expects women's rights advocates in Alabama will also head to court to try and keep the state's last few clinics open.

The Taliban Are Inadvertently Really Good at Endangered Falcon Conservation

| Wed Apr. 3, 2013 5:21 PM EDT
Lovers of falcons?

The Taliban, the violent Islamist movement, is responsible for a lot of bloodshed, many human rights violations, and some really mediocre and chauvinist poetry.

They are also at the forefront of protecting endangered falcons, however unintentional their conservation efforts may be.

Ashfaq Yusufzai has the story:

While the Taliban's military activities continue to plague Pakistan's northern Federally Administered Tribal Areas (FATA), the incessant violence has been a blessing in disguise for one creature: the falcon.

Declared endangered by the [International Union for Conservation of Nature], this bird of prey suffered for years at the hands of poachers and hunters, whose unfettered access to FATA and the adjacent Khyber Pakhtunkhwa (KP) province guaranteed the birds a short life span in the wild, with most destined to be trapped, killed or sold.

But "continued militancy has kept the poachers (and hunters) away," Khalid Shah, an official at the KP Wildlife Department, told IPS, adding that the survival rate of falcons and some other migratory birds has "increased tremendously". In 2005 only 2,000 falcons lived in these northern territories, but by 2008 wildlife officials had recorded an increase of up to 8,000 birds.

Experts trace this population growth to the beginning of the insurgency here, which began after the 2001 U.S.-led invasion of Afghanistan toppled the government in Kabul and sent scores of Taliban and Al Qaeda members across the border into Pakistan's sprawling mountainous terrain. Being the U.S. 's ally in the so-called "war on terror", the Pakistan army has engaged in a military offensive to root out the insurgents...Under fire from both sides, civilian residents say militancy has made daily activities – among them hunting and poaching — impossible.

On a related note, after the Taliban's rise to power in Afghanistan, the regime made it illegal to own birds in cages. Also, a study conducted by scientists from the New England Aquarium determined that whales greatly benefited from the September 11 Al Qaeda attack on New York's Twin Towers. But Islamist violence is probably not a net positive for local wildlife; during the Taliban's takeover of Afghanistan in the '90s, they ransacked the Kabul zoo, slaughtered animals, maimed a bear, threw a grenade at a lion, and left the other creatures to starve to death.

Accidental falcon conservation aside, the Taliban's treatment of animals often mirrors their treatment of women.

h/t Jon Mooallem

Bush Lying About WMD Is a Conspiracy Theory?!?

| Wed Apr. 3, 2013 4:34 PM EDT

People believe crazy things.The lunar landing was faked; a secret band of "lizard people" controls our society. New survey data from Public Policy Polling released on Tuesday shows notable percentages of Americans embrace a wide variety of conspiracy theories, from Bigfoot to the CIA creating the crack epidemic.

PPP found that:

  • 37 percent of voters believe global warming is a hoax
  • 6 percent of voters don't believe that Osama bin Laden is dead
  • 28 percent of voters believe "secretive power elite with a globalist agenda is conspiring to eventually rule the world through an authoritarian world government, or New World Order"
  • 7 percent of voters think man did not actually walk on the moon
  • 13 percent of voters think President Obama is the anti-Christ
  • 14 percent of voters believe in Bigfoot
  • 44 percent believe George W. Bush intentionally misled the US about weapons of mass destruction in Iraq

Screeeeech. Stop the crazy train. What? Bush did lie about WMD. That's not a wacky conspiracy theory; it is quite well documented at this point. That's a topic for another poll.

Virginia Gov. Candidate Cuccinelli Defending Law That Forbids Oral Sex

| Wed Apr. 3, 2013 1:13 PM EDT

Last month, three judges on the US Court of Appeals for the 4th Circuit deemed a Virginia anti-sodomy law unconstitutional. The provision, part of the state's "Crimes Against Nature" law, has been moot since the 2003 US Supreme Court decision overruled state laws barring consensual gay sex, but Virginia has kept the prohibition on the books.

Now Virginia attorney general and Republican gubernatorial candidate Ken Cuccinelli is asking the full 4th Circuit to reconsider the case. Cuccinelli wants the court to revive the prohibition on consensual anal and oral sex, for both gay and straight people. (The case at hand involves consensual, heterosexual oral sex, but, as the New York Times explained in 2011, it's "icky": The sex was between a 47-year-old man and two teenagers above Virginia's age of consent.)*

 Here's more from the Washington Blade:

Virginia Attorney General Kenneth Cuccinelli has filed a petition with the 4th Circuit U.S. Court of Appeals in Richmond asking the full 15-judge court to reconsider a decision by a three-judge panel last month that overturned the state’s sodomy law.
The three-judge panel ruled 2-1 on March 12 that a section of Virginia’s "Crimes Against Nature" statute that outlaws sodomy between consenting adults, gay or straight, is unconstitutional based on a U.S. Supreme Court decision in 2003 known as Lawrence v. Texas.
A clerk with the 4th Circuit appeals court said a representative of the Virginia Attorney General's office filed the petition on Cuccinelli's behalf on March 26. The petition requests what is known as an en banc hearing before the full 15 judges to reconsider the earlier ruling by the three-judge panel.

Mother Jones confirmed that Cuccinelli had filed the request with the court as well. Given that the Supreme Court has already ruled that gay sex is okay and moved on to the question of gay marriage, I wouldn't expect his appeal to go very far.

This post has been updated to include more details about the case in question.