Kansas Law on Gay Sex
By ADAM LIPTAK,
NYTimes on the Web, October 22, 2005
Matthew R. Limon had just turned 18
when he had consensual oral sex with a boy just shy of 15 at a Kansas school in
2000. He was convicted of criminal sodomy and sentenced to 17 years in
prison. Had the sex been heterosexual, the maximum penalty would have been
Yesterday, the Kansas Supreme Court ruled that the starkly different penalties
violated the federal Constitution's equal protection clause. It said the
state's "Romeo and Juliet" statute, which limits the punishment that can be
imposed on older teenagers who have sex with younger ones, but only if they are
of the opposite sex, must also apply to teenagers who engage in homosexual sex.
Mr. Limon will soon be released, his lawyer, James D. Esseks, said. "He's
spent an extra four years and five months in jail only because he's gay," said
Mr. Esseks, a lawyer at the American Civil Liberties Union.
In 2003, in a decision called Lawrence v. Texas, the United States
Supreme Court struck down a Texas law that made gay sex between adults a crime.
But a Kansas appeals court ruled last year that the Lawrence decision did not
affect Mr. Limon's case, reasoning that it did not involve minors and involved,
for the most part, privacy rights rather than equal protection.
The two appeals judges in the majority offered various justifications for the
One judge, Henry W. Green Jr., said the Kansas law promoted "traditional sexual
mores," "the traditional sexual development of children," marriage, procreation
and parental responsibility. Judge Green added that the law helped protect
minors from sexually transmitted diseases, which he said were more generally
associated with homosexual than with heterosexual activity.
A second appeals court judge, Tom Malone, endorsed only the final rationale,
though he called it tenuous. A dissenting judge, G. Joseph Pierron Jr.,
wrote that "this blatantly discriminatory sentencing provision does not live up
to American standards of equal justice."
In its decision yesterday, the Kansas Supreme Court ruled that the Lawrence case
required reversal of the lower-court decision in Kansas. The State Supreme
Court rejected all justifications offered by the appeals court. "The moral
disapproval of a group cannot be a legitimate state interest," Justice Marla J.
Luckert wrote for the unanimous court.
Justice Luckert rejected the argument that homosexual sex is more likely to
"The Romeo-and-Juliet statute is overinclusive because it increases penalties
for sexual relations which are unlikely to transmit H.I.V. and other sexually
transmitted diseases," Justice Luckert said, referring to the oral sex in the
Limon case and sex involving two women. "Simultaneously," she continued,
"the provision is underinclusive because it lowers the penalty for heterosexuals
engaging in high-risk activities," notably anal sex.
The fit between the law and the rationales offered for it is so poor, she
concluded, that it violates the Constitution's equal protection clause.
In a brief filed in the case, Phill Kline, the Kansas attorney general, said a
ruling in Mr. Limon's favor would "begin a toppling of dominoes which is likely
to end in the Kansas marriage law on the scrap heap."
"Sexual desires rather than communal and historical sensitivities would then
define the marital relationship," Mr. Kline added, "allowing such combinations
as three-party marriages, incestuous marriages, child brides and other
Mr. Esseks called the argument "patently ridiculous," saying, "Their premise
seems to be that gay people have to stay in prison, be made invisible and not
have any degree of rights or else gay people will be able to get married."
In a statement issued yesterday, Mr. Kline was more conciliatory. He said
that he had voted against the law as a state legislator, "as I did not support
the public policy of providing a lengthier sentence for same-sex exploitation as
contrasted with opposite-sex exploitation." He added that his office would
probably not appeal to the United States Supreme Court.