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DECRIMINALIZING SAME-SEX BEHAVIOR:
PART 3

Secondary ruling by the U.S. Supreme Court in Lawrence v. Texas;
Decision of the Kansas Supreme Court in State v. Limon

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Quotations from the time of Lawrence v. Texas:

bulletGays are "entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime." Justice Anthony M. Kennedy, Lawrence v. Texas, 2003-JUN-26. 1
bullet"A conservative Supreme Court has now identified the gay rights cause as a basic civil rights issue." Linda Greenhouse, reporter, The New York Times. 1

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Background:

On 2003-JUN-26, the U.S. Supreme Court issued a ruling in Lawrence v. Texas, that may eventually have as widespread impact on American culture as did the Roe v. Wade decision. The latter ruling in 1973 granted women free access to early abortions, and ended compulsory childbirth for pregnant women across the U.S.

The court voted 6 to 3 to declare as unconstitutional a Texas anti-sodomy law which criminalized anal and oral sex if performed by two same-sex persons. 2 It also declared similar laws in over a dozen states unconstitutional. The ruling was unusual because almost all recent cases involving religion, morality and ethics have been decided by a 5 to 4 vote. The Justices appear to have based their decision on the concept of personal privacy and liberty from government intervention. That was also the basis for the Roe v. Wade decision. The court ruled that states cannot criminalize behavior merely because it it considers it to be immoral. Justice Sandra Day O'Connor wrote in support of the the majority decision that the Texas law "brands all homosexuals as criminals," and makes it more difficult for them to be treated in the same manner as heterosexuals. 3

In a little-noticed action, the U.S. Supreme Court ordered new trial for a Kansas gay youth, Matthew R. Limon. Some have speculated that the court did this one day after their ruling of the Lawrence v. Texas case in order to reinforce its concept that homosexuals and heterosexuals must be treated equally in law. This essay deals with the State v. Limon case.

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Overview:

The U.S. Supreme Court ordered the Kansas Court of Appeals to rehear its case involving two inmates at a residential school for developmentally disabled youths. Matthew Limon was barely 18 years of age on 2000-FEB-16 when he engaged in consensual homosexual oral sex with another male inmate, M.A.R., who was almost 15 years of age at the time. It was Limon's third conviction for same-sex behavior. If Limon had been caught engaging in sex with a young woman of that age, he would have been tried under the state's "Romeo and Juliet Law." It gives minimal sentences to cases of this type -- typically 13 to 15 months in jail. But that law only applies to opposite-sex encounters. Limon was tried under a different law, one that criminalized same-sex behavior between an adult and minor. He was found guilty in the year 2000, and given 206 months -- over 17 years in jail. This is an increase of about 15 times! In addition, he was sentenced to 5 years of post-release supervision and required to register as a persistent sexual offender. Neither the supervision nor registration would have applied if the Romeo and Juliet law had applied to all couples, not just opposite-sex couples.

Limon had appealed his conviction to the Kansas Court of Appeals. The court primarily based its decision on a 1986 U.S. Supreme Court ruling in Bowers v. Hardwick which had upheld state laws against same-gender sexual activity. The Kansas court denied his appeal in 2002-FEB. The ruling said, in part:

"The United States Supreme Court does not recognize homosexual behavior to be in a protected class...Therefore, there is no denial of equal protection when that behavior is criminalized or treated differently, at least under an equal protection basis." 8

The court ruled that law assigning harsher punishment for same-sex couples was justified because of the need to protect children's traditional development, to fight disease, and to strengthen traditional cultural values. 4

Limon then appealed to the Kansas Supreme Court, but was refused. He finally filed a petition for a writ of certiorari to the United States Supreme Court.

The Supreme Court overturned its Bowers v. Hardwick ruling as part of the Lawrence v. Texas decision 2003-JUN-26. They ruled that:

"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.' [Citation omitted.] The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." 8

Justice O'Connor concurred with the majority but found that the Texas law violated the Constitution's equal protection clause. She wrote:

"A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review."

This opinion related to adult-adult same-sex behavior. However, one could argue by analogy, that if such activity was to be permitted, then there should be no difference in treatment between same-sex and opposite-sex encounters involving an adult and child.

The next day, the Supreme Court ordered the Kansas Court of Appeals to retry the Limon case.

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Comments regarding the U.S. Supreme Court's decision:

As expected, reactions at the time varied:

bullet

James Esseks, litigation director of the American Civil Liberties Union's Lesbian and Gay Rights Project, said:

"The Romeo and Juliet Law, similar to the Texas law that was struck down yesterday, treats lesbian and gay people much more harshly than it does straight people who engage in the same behavior, and states can no longer get away with that kind of unequal treatment...We hope that this is the first of many wrongs that yesterday's ruling will correct." 5

bulletDick Kurtenbach, executive director of the American Civil Liberties Union of Kansas and Western Missouri, said: "Matthew Limon is in prison now because he is gay...There is now an opportunity to correct this massive injustice." 6
bulletMiami County Attorney David Miller disagreed, saying that Limon had been prosecuted under a law that was designed to protect children. He said: "The Supreme Court's decision had to do with consenting adults...The victim in this case was not of age to give consent." 6
bulletState Rep. Mike O'Neal, (R-Hutchinson), chairman of the House Judiciary Committee, said the question of sexual orientation was never considered during debate in the state legislature on the Romeo and Juliet law. He now feels that the law may have to be amended. "I'm fine with that," he said. 6
bulletState Senator John Vratil, (R-Leawood), felt it was too early to talk about legislative action. He said: "I would not favor crafting a legislative solution to an assumed problem." 6

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Decision of the Kansas Court of Appeals:

A three judge panel of the Court of Appeals ruled 2 to 1 against Limon, thus confirming his 17 year sentence.

Each judge filed a separate opinion:

bulletJudge Green, writing for the majority, said that the U.S. Supreme Court's decision in Lawrence v. Texas "...is factually and legally distinguishable from the present case." He noted that U.S. Supreme Court Justice Kennedy mentioned that their case did not involve minors. Rather, it concerned "...two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle." Also, Limon's argument did not include a due process challenge whereas the the higher court was largely based on that clause.
bulletJudge Green identified four factors by which the state might legitimately differentiate between same sex behavior of two adults, when compared to the same behavior between an adult and child:
bulletThe latter could disturb the traditional sexual development of children....the law "...is designed to discourage voluntary sexual behavior between young adults and children which deviates from traditional sexual mores." Giving a more lenient sentence to members of the opposite sex is proper "because it is rationally related to the purpose of protecting and preserving the traditional sexual mores of society and the historical sexual development of children."
bulletThe state has a legitimate interest in protecting heterosexual marriage because opposite-sex couples often have children and thus replenish the population. Sexual acts between same-sex couples do not lead to procreation.
bulletA shorter sentence for opposite-sex couples may be justified so that the young adult offender could be released earlier and be in a better position to support his or her child.
bullet"...certain health risks are more generally associated with homosexual activity than with heterosexual activity." Thus more severe sentencing for same-sex couples could be justified on public health grounds. [The Kansas Supreme Court later rejected this concern, writing:
bullet"There is a near-zero chance of acquiring the HIV infection through the conduct which gave rise to this case, oral sex between males, or through cunnilingus. And, although the statute grants a lesser penalty for heterosexual anal sex, the risk of HIV transmission during anal sex with an infected partner is the same for heterosexuals and homosexuals."] 8
bulletJudge Malone also voted to uphold Limon's sentence. His main point was that even

"...if the only rational basis justifying the statute is the legislature's intention to protect children from increased health risks associated with homosexual activity until they are old enough to be more certain of their choice, it is within the legislature's prerogative to make that determination. This rationale, although tenuous in some respects, provides a 'reasonably conceivable state of facts' sufficient to justify the statutory classification."

bulletJudge Pierron disagreed with the majority opinion. He wrote that the

"[l]egislative disapproval of homosexuality alone is not enough to justify any measures the legislature might choose to express its disapproval. Under the rational basis test, there must be a showing that the measures adopted have a rational relationship to a legitimate legislative concern."

He reviewed the above four points and found that none justified discrimination on the basis of gender. He concluded:

"The purpose of the law is not to accomplish any of the stated aims other than to punish homosexuals more severely than heterosexuals for doing the same admittedly criminal acts." 

Limon then appealed the decision to the Kansas Supreme Court.

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Decision of the Kansas Supreme Court - State v. Limon:

The Kansas Supreme Court reviewed Limon's case. John Hanna of the Associated Press described two different views of the sexual act by the attorneys in the case.

bullet"Limon's attorneys described their relationship as consensual and suggested that they were adolescents experimenting with sex."
bulletState Attorney General Phill "Kline's office described Limon as a predator with two previous such offenses on his record. Kline contended that such a behavior pattern warranted a tough sentence and that courts should leave sentencing policy to the Legislature." 4

On 2005-OCT-21, the court unanimously declared that the state's "Romeo and Juliet" law that criminalized underage same-sex behavior 7 violates:

bulletThe equal protection provisions of the Fourteenth Amendment to the United States Constitution and
bulletSection 1 of the Kansas Constitution Bill of Rights,

because it applies only to opposite-sex couples. It is therefore unconstitutional. However, the law can remain in place by removing the phrase "and are members of the opposite sex" from the legislation.

Following the lead of the U.S. Supreme Court's 2003 decision in Lawrence v. Texas, they ruled that "moral disapproval" of such activity is insufficient to justify treating same-sex and opposite-sex behavior differently. Justice Marla Luckert prepared the decision of the court. She wrote that the law:

"suggests animus toward teenagers who engage in homosexual sex.....The statute inflicts immediate, continuing and real injuries that outrun and belie any legitimate justification that may be claimed for it...Moral disapproval of a group cannot be a legitimate state interest." 4

The ruling concludes:

"We further grant Limon's requested remedy of imposing a time limit upon further proceedings in this case and order that the State will have 30 days in which to:

  1. Charge Limon under the statute without the words 'members of the opposite' sex or
  2. Take other action."

The Attorney General suggested that the Kansas Supreme Court cannot rewrite the "Romeo and Juliet" statute; it can only nullify the entire statute by declaring it unconstitutional. The court disagreed and deleted the phrase from the law, as it has done on several occasions in the past with other laws.

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Comments regarding the Kansas Supreme Court's decision:

As before, the reactions were predictable:

bulletJames Esseks of the American Civil Liberties Union's Lesbian and Gay Rights Project represented Limon before the Supreme Court. He said: "We are very happy that Matthew will soon be getting out of prison. We are sorry there is no way to make up for the extra four years he spent in prison simply because he is gay."
bulletPhill Kline, Attorney General of Kansas, issued a statement saying that no appeal is expected.
bulletMatt Foreman, of the National Gay and Lesbian Task Force, said that the Lawrence v. Texas decision in 2003 and the Kansas Supreme Court unanimous ruling "....shore up the principle that gay people are entitled to equal protection. But no one's quite sure how firm that foundation is."
bulletMathew Staver, of the fundamentalist Christian legal defense group Liberty Counsel, said that the law which treated same-sex and opposite-sex couples differently was justified by the state's interest in protecting children and families. He also believes that the court overstepped its authority in declaring the law unconstitutional. He said: "That's a legislative function. This is clearly a sign of an activist court system."
bulletPatricia Logue, of Lambda Legal, a gay-positive group, hopes that the Kansas court decision will discourage activities in a number of states to pass anti-gay laws. She said:

"A lot of the reasoning used here by the state comes up again and again. What the court is saying is, 'If you've got a better reason, you would have told us by now. The ones you've come up with are not good enough, and they amount to not liking gay people'."

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References:

  1. Linda Greenhouse, "Justices, 6-3, legalize gay sexual conduct in sweeping reversal of court's '86 ruling. Cite privacy right. Texas sodomy law held unconstitutional - Scathing dissent," The New York Times, 2003-JUN-27, Page A1 & A19
  2. "High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at: http://www.cbsnews.com/
  3. Tim Harper, "Sodomy laws struck down: Highest U.S. court says Texas statute unconstitutional. Dissenter warns of legalized marriage for homosexuals," Toronto Star, 2003-JUN-27, Page A3.
  4. John Hanna, "Court rules Kan. can't single out gay sex," Associated Press, 2005-OCT-21, at: http://news.yahoo.com/
  5. "Supreme Court applies sodomy ruling to case involving a gay youth," Advocate.com, 2003-JUN-28 to 30, at: http://www.advocate.com/
  6. Tony Rizzo, "Kansas told to rethink gay sex case," The Kansas City Star, 2003-JUN-28, at: http://www.kansascity.com/
  7. The law cited is K.S.A. 2004 Supp. 21-3522.
  8. The text of the Kansas Supreme Court decision is at: http://www.kscourts.org/
  9. A brief summary of State v. Limon is at: http://www.kscourts.org/

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Copyright 2003 to 2005 by Ontario Consultants on Religious Tolerance
Originally written: 2003-JUN-26
Latest update: 2005-OCT-22
Author: B.A. Robinson

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