The Kansas Supreme Court Rights a Wrong, Ruling that the State Cannot Penalize a Teenager for Being Gay

By JOANNA GROSSMAN
lawjlg@hofstra.edu
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Tuesday, Nov. 01, 2005

Matthew Limon was a resident at a school for developmentally disabled children. A week after he turned eighteen, Limon engaged in oral sex with another boy at the school, who was a month shy of his fifteenth birthday.

According to a stipulation by all parties, the sexual contact was voluntary on both sides (insofar as a minor's sex act can be voluntary). In other words, this was not a case of forcible rape.

Despite his developmental disability, young age, and the fact that the contact was not coerced, the State of Kansas charged Limon with committing sodomy with a male minor and sentenced him to seventeen years in prison. (The sentence was as long as it was in part because Limon had a relevant juvenile criminal history. The punishment also included five years of post-release supervision and registration as a persistent sex offender.)

Had the minor been female, Limon, even with his history, would have been sentenced to at most fifteen months in prison.

But, because the minor was - like Limon -- male, Limon received a sentence more than ten times longer.

Limon has already served five years of that sentence - enduring incarceration three times more lengthy than would have been the case had the minor been female.

Is this disparity in punishment, which depends on whether the unlawful sexual contact is heterosexual or homosexual, unconstitutional?

In a recent opinion, the Kansas Supreme Court said yes. Its ruling both corrects a severe injustice and illustrates the reach of the U.S. Supreme Court's landmark 2003 opinion regarding state sodomy laws, Lawrence v. Texas.

The Law That Would Have Applied If Limon's Victim Were Female

Limon was prosecuted under a type of sodomy law -- K.S.A. 21-3505. But if his victim had been a girl, that prosecution would have been impossible. Instead, prosecutors would have been required to charge him with a lesser offense, under the state's "Romeo and Juliet" law -- K.S.A. 21-3522.

That law addresses instances of voluntary intercourse, sodomy, or lewd touching with a child of 14 or 15, by a person who is not yet nineteen years old, and who is less than four years older than his victim - but only when the victim is a member of the opposite sex!

Put another way, Kansas law provides no safe harbor for "Romeo and Romeo" - or for Juliet and Juliet, for that matter.

A Challenge Under Lawrence v. Texas: Prior Rulings in the Limon Case

Initially, Limon lost his appeal before the Kansas intermediate appellate court. Then, the Kansas Supreme Court declined to review Limon's case.

(That decision, in my view, was appalling: This case presented important constitutional issues of equal protection and due process, and then, as now, presented a severe individual injustice. Review should have been granted.)

So Limon sought review from the U.S. Supreme Court. His situation seemed much more hopeful when the Supreme Court handed down its decision in Lawrence v. Texas, invalidating Texas' law criminalizing same-sex sodomy on constitutional grounds. (I have written in more detail about Lawrence and its implications in an earlier column.)

And, indeed, the next day, the Court granted Limon's petition for review, vacated the judgment of the intermediate appellate court, and remanded the case for "further consideration in light of Lawrence v. Texas."

On remand, however, the appellate court affirmed Limon's conviction and sentence. The Kansas Supreme Court, however, accepted review this time, and disagreed - finally ruling in Limon's favor, based on Lawrence.

How Does the Lawrence Precedent Apply in Limon's Case?

The opinion in Lawrence was historic. Overruling the 1986 precedent of Bowers v. Hardwick, it denounced the right of a state to criminalize consensual sexual relations between adults. In so doing, the Supreme Court firmed up a zone of privacy surrounding adults' intimate lives and sexual choices.

The technical holding of Lawrence was that individuals have a liberty interest, protected by the Due Process Clause of the U.S. Constitution, in making choices about their intimate lives and in engaging in private, consensual conduct consistent with those choices.

The Court tried to draw boundaries around that right, however, by listing a number of factors not presented by the case. One was the presence of minors. Another was the presence of coercion - and a non-forcible type of coercion may arguably be involved in adult/minor sexual relations.

Why did the Court take care to distinguish cases involving minors?

Minors do not benefit from full constitutional protection in many areas, including some rights encompassed within the right to privacy. States, for example, can constitutionally require minors to seek parental or judicial consent before obtaining an abortion. So they may not have a Lawrence-style right to engage in intimate conduct in the same way adults do. (For an argument that Lawrence might impact the validity of some statutory rape claims, see Arnold H. Loewy, "Statutory Rape in a Post-Lawrence v. Texas World," 58 Southern Methodist University Law Review 77 (2005).)

And adults clearly do not have an unfettered right to choose a minor as a sexual partner - as illustrated by laws criminalizing child molestation and incest that do not seem vulnerable to challenge after Lawrence. (However, as I noted in a prior column on cousin marriage, when incest prohibitions go beyond concerns about exploitation, they may be especially questionable.)

The Limon court was thus spared the inquiry into whether there is any absolute protection for young adults who engage in voluntary sexual relationships with older minors.

It was asked, instead, only to rule on the relative protection for Limon's conduct - can a state punish a homosexual adult-minor relationship more severely than a heterosexual one? In answering this question, it looked, of course, to Lawrence.

Must A State Punish Heterosexual Statutory Rape as Severely as Homosexual Statutory Rape? Lawrence Must Be Read in Conjunction with Other Cases

In Lawrence, Justice O'Connor suggested in a concurring opinion that the Texas law be invalidated on equal protection grounds. The state could not, in her view, criminalize same-sex sodomy, while permitting opposite-sex sodomy. That view seems directly pertinent to Limon's case.

The Lawrence majority, though, did not undertake this analysis. Though the majority noted it was "a tenable argument," it thought the equal protection approach did not go far enough. Five justices wanted the opinion to make clear that a state simply could not penalize this type of conduct at all, even if it was evenhanded about it.

So what is the relevance of Lawrence to a claim premised on equal protection principles? The answer is unclear. Yet an equal protection claim is the only type of claim at issue in Limon: what Limon objects to is the additional punishment imposed because his conduct was homosexual, rather than heterosexual, in nature.

The Limon court thus, correctly, turned to a line of equal protection cases, to examine in conjunction with Lawrence, when it considered the validity of Kansas's scheme.

Applying the Equal Protection Framework in Limon's Case

Analysis of equal protection claims begins with a determination of the appropriate level of scrutiny. The Kansas court read Lawrence and equal protection cases to dictate the lowest level of review for the classification at issue: "rational basis" review. Under that standard, the state need only show that the challenged law serves a legitimate state interest and that the classification is rationally related to that interest.

Uncovering the state's purpose for enacting the Romeo and Juliet law - and its limitation to opposite-sex couples - proved an elusive quest. The Limon court examined the legislative history for the 1999 statute, but found nothing to indicate why the opposite-sex language was added to a second version of the bill.

Under the rational basis test, a state need not prove the actual purpose for legislation - it can instead defend its law based on a conceivable purpose. But none of the purposes Kansas actually offered, in this instance, were deemed sufficient by the Kansas Supreme Court

Why? The short answer is this: Though "rational basis" is a relatively low level of scrutiny, the Supreme Court made clear in its 1996 opinion in Romer v. Evans that legislatures do not get a free pass when their laws undergo this type of review.

Supreme Court Holdings Suggest Laws Born of Anti-Gay Animosity Must Fail

In Romer, the Court struck down an amendment to the Colorado Constitution that had prohibited governmental protection against sexual orientation discrimination. Though the standard was low -- rational basis review - the Court held that a law cannot survive even that low standard if "it is born of animosity toward the class of persons affected."

Similarly, while Lawrence does not directly speak to equal protection claims, its language, reasoning, and holding strongly imply that the government cannot penalize its citizens simply for being "practicing" homosexuals.

Here, those general principles are instructive. Courts should, as the Limon court did, take a real look at a state's reasons for classifying its citizens. Kansas offered several reasons for penalizing homosexual adult-minor sex more severely, none of which were convincing.

First, Kansas argued that there statutory rape laws are generally designed to mitigate against the potential for coercive influences in adult-child sexual relationships.
But it offered no factual support to suggest that these tendencies were greater when the adult and child were of the same sex.

Second, Kansas offered a public health justification, focusing on the risk of HIV transmission. However, the court, again, saw no evidence of greater risk for same-sex sexual contact -- particularly when the escalated punishment applies to forms of female-female sexual contact that pose almost no risk of transmission, and does not apply to opposite-sex anal sex, which poses a significant risk.

Third, Kansas suggested that the law promotes parental responsibility because it offers a lesser sentence in cases where the sexual contact might lead to pregnancy. Presumably, the idea is that straight young couples need to get out of jail sooner in case their union has led to children.

But this suggestion seems absurd. Kansas offers that same lesser sentence for forms of sexual contact that do not lead to pregnancy - as long as it occurred between a male and female. And one could argue, conversely, that the statute, by declining to punish Romeo and Juliet as harshly as same-sex couples, even though only Romeo and Juliet's sex may lead to a child, the state is actually promoting teenage pregnancy - not parental responsibility!

Fourth, Kansas proffers an interest in promoting "appropriate" sexual development of children. This is clearly illegitimate under the Lawrence precedent, which clearly states that morality cannot be used to justify a law that infringes upon a constitutionally protected interest. When "appropriate" is used as code for "heterosexual," the moral rationale -and, arguably, the anti-gay animus -- is clear.

The Kansas court thus found no rational basis for the laws that led to Limon's extraordinary sentence. It thus struck the words "and are members of the opposite sex" from the Romeo and Juliet law and ordered Limon resentenced under the corrected provision.

The Right Result, But One That Should Have Come Much Sooner

The Kansas Supreme Court has clearly reached the right result in this case, though this may be little comfort to Limon who has already served years beyond his constitutionally permissible sentence. As noted above, had the court had the courage to take on this landmark case earlier, this continuing injustice could have been prevented. In addition, there was no need for the remand here; the Kansas Supreme Court should simply have freed Limon.

The Supreme Court has never taken on sexual orientation discrimination head-on, but its precedents in Lawrence and Romer combine to mean, at least, that a state cannot impose penalties on its homosexual citizens.

That's the right result: Such minimal protection for a politically disadvantaged group is essential to a just society.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.