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Court Rules Kan. Can't Single Out Gay Sex


Barry
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Here's the link to the text of the decision:

 

http://www.kscourts.org/kscases/supct/2005/20051021/85898.htm

 

When you read the facts, you can see how heartbreakingly unfair and unjust the punishment meted out to the plaintiff was.

 

The right-wingers are already doing their knee-jerk "judicial activists" hue and cry, but anyone who reads the decision for themselves will see that the Kansas court stuck very closely to the precedent and interpretation in the Lawrence case (this case was sent back to Kansas by the U.S. Supreme Court for reconsideration in light of the holdings in Lawrence).

 

Except for ruling that differential treatment of same-sex and opposite-sex sexual activities in the Kansas "Romeo and Juliet" statute was a denial of equal protection under both the U.S. and Kansas Constitutions, the court let the rest of the statute stand, rather than nullify it altogether. Rather than be "activists," that shows considerable deference to legislative intent.

 

Speaking of intent, the court examined the legislative history of the statute and discusses it in the decision. Interestingly, the differential treatment wasn't in any of the original versions of the statute. It showed up inserted in the text AFTER the bill went to conference, but there are no minutes explaining who changed the language or why, although there are minutes covering other aspects of the conference. So it looks like an evil little gift from a homophobic legislator too chicken to be out in the open about his bigotry. The lack of any expressed reason for the dfferentiation made the provision more suspect than it might have been otherwise.

 

The decision will be important in future cases, because it builds on the Lawrence decision, which rested primarily on the Due Process Clause. Justice O'Connor, though, thought the Texas sodomy law ruled unconstitutional in Lawrence was invalid under the Equal Protection provisions because it applied only to gays, not straights. The Kansas court followed Justice O'Connor's line of reasoning, pointing out along the way that the standard of scrutiny and the analytical method for making a decision based on Equal Protection is virtually identical to those under Due Process. The difference was that in Lawrence the sodomy law applied only to gays; straights in Texas could sodomize each other as much as they liked without penalty. In this case, all sex between young adults and minors is criminalized in Kansas. The penalties, though, were different depending on whether the sexual activities were between partners of the same or opposite sex, with no rational justification for such a distinction. In that scenario, that wasn't a Due Process issue, it was an Equal Protection one.

 

Matt Limon, the developmentally disabled young man who is the plaintiff in this case ended up being sentenced to 17 years in prison when he would have gotten 15 months (with probation) if he had been having sex with a girl instead of a boy. He's already served 5 years. Treating this kid like that was just sheer cruelty fomented by homophobia.

 

I hope everyone reading this will show their gratitude to the ACLU Lesbian and Gay Rights Project (which fought this case) and to Lambda (which also fights for our rights in the courts) through their pocketbooks. Wins like this don't come cheap. You can read more, and contribute, at http://www.lambdalegal.org and http://www.aclu.org/LesbianGayRights/LesbianGayRightsMain.cfm Consider a small monthly debit to your credit card ($10 or $20). You won't even notice it, but you'll be contributing mightily to fighting for our constitutional rights.

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You're not confused. You're correct. The case in question was an appeal by Matt Limon of his case. Had he been heterosexual, he would have fallen under the KS "Romeo and Juliet" law. Because he was gay, he was tried as an adult sexual offender and given an unconscionably long sentence.

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