Sodomy Law Vestige Nixed

Kansas Romeo & Juliet law finally applied to gay teen in fellatio prosecution

In a unanimous reversal, the Kansas Supreme Court ruled on October 21 that the state’s Romeo & Juliet law, under which sexual acts between two teenagers are treated much more leniently than sex acts between an adult and a teen, must be extended to same-sex conduct.

The decision reversed a 2-1 decision by that state’s court of appeals, which had upheld the conviction of and a draconian prison sentence for Matthew Limon for an incident that took place in 2000.

With this ruling, the Kansas courts, after a battle of more than two years, have finally accepted the logic inherent in the U.S. Supreme Court’s Lawrence v. Texas ruling of June 26, 2003 that struck down sodomy statutes nationwide.

Limon should now be release, since he has already served for longer than if he were straight.

Limon, barely 18 years old in 2000, was charged with sodomy for initiating oral sex with another boy, who was then almost 15 years old, at a school for developmentally disabled children where both were residents. According to the opinion for the court by Justice Marla J. Luckert, Limon “falls between the ranges described as borderline intellectual functioning and mild mental retardation,” and his partner on that occasion “functions in the upper limits of the range of mild mental retardation.” According to the court record, the other boy consented to letting Limon fellate him, but then asked Limon to stop, which he did.

At the time of this incident, Limon’s record included two prior juvenile adjudications for sexual misconduct.

There was some argument at trial about whether the younger boy had the mental capacity to consent, but ultimately the case was decided on the presumption that the sex was consensual.

If Limon’s sex partner on that occasion had been female, the Romeo and Juliet law would have applied and the longest prison sentence would have been 15 months. But because that statute is specifically limited to opposite-sex cases, Limon was prosecuted as an adult, as if he had committed statutory rape, and sentenced to more than 17 years in prison.

Limon appealed his sentence, arguing that the failure to include same-sex activity under the Romeo and Juliet law violated his right to equal protection of the laws under the United States and Kansas Constitutions. Limon did not argue on appeal that his conduct was not criminal, but rather that the disparity in sentencing relative to peers engaged in heterosexual conduct was unconstitutional.

The Kansas Court of Appeals initially rejected his claim, relying on the U.S. Supreme Court’s decision in Bowers v. Hardwick, the 1986 Georgia sodomy case. The American Civil Liberties Union filed an appeal on Limon’s behalf to the Kansas Supreme Court, which declined to review the case. The ACLU then petitioned the U.S. Supreme Court to consider the federal equal protection claim.

The June 2003 Supreme Court decision in Lawrence v. Texas held that criminal sodomy laws violate the liberty protected by the due process clause. Days later, the Court granted Limon’s petition for review and vacated the decision by the Kansas Court of Appeals, sending the case back to the Kansas courts for “reconsideration in light of Lawrence v. Texas.”

But the Kansas Court of Appeals voted 2-1 to reaffirm Limon’s conviction. The majority of the panel found Lawrence v. Texas to be irrelevant, pointing out that the Supreme Court had not decided Lawrence on equal protection grounds and that because the petitioners in the Lawrence case were adults, the Supreme Court was not considering whether a state could outlaw sodomy involving minors.

A dissenting judge strongly argued that in light of Lawrence and other cases, the Romeo and Juliet law was vulnerable to an equal protection challenge, and that the state had failed to provide a rational justification for treating gay sex differently from heterosexual sex under its criminal code.

Limon appealed again.

James Esseks, litigation director for the ACLU’s Lesbian and Gay Rights Project, argued the case before the Kansas Supreme Court. 

Taking up the analysis for the court, Justice Luckert found that Lawrence v. Texas did not mandate that the state need defend the Romeo & Juliet Law against the strict scrutiny standard for which Limon was arguing. She also found, by implication, that the Lawrence court’s reference to the prior decision in Romer v. Evans—a 1996 Supreme Court equal protection case that found that a Colorado state constitutional bar on gay civil rights protections violated the equal protection rights of gay and lesbian citizens to participate in the political process—meant that the appropriate method of analyzing the case was to determine whether the state had a rational justification, but not necessarily reason more compelling, for treating gay sex more harshly.

However, Luckert concluded, the court of appeals erred in how it applied this test to the arguments made by the state in defending Limon’s conviction on appeal. The 2-1 court of appeals decision had been fractured, and the two judges in the majority, each writing separately, agreed on only one rational justification for the law. Kansas had argued that gay sex presented greater health dangers than non-gay sex, so the state was justified in imposing greater penalties in order to deter gay sex involving teenagers in order to protect them from AIDS and other sexually-transmitted diseases. One court of appeals judge embraced this argument wholeheartedly, a second concurred while describing the argument as “tenuous in some respects.”

The dissenting judge found this justification ridiculous and said so at length in his opinion.

The Kansas Supreme Court found, in agreement with the dissenting judge on the court of appeals, that this argument did not stand up to serious analysis. For one thing, the lowest risk sex for transmitting STDs is lesbian sex. For another, there is no risk of transmitting an STD if both parties are uninfected, and there is substantial risk if one party is infected, but the risk does not turn on the gender of the parties. Thus, if the state’s justification for treating gay sex more harshly is based on the risk of STD transmission, the statute is simultaneously over-broad and not broad enough.

Having ruled out the one justification accepted by the two judges who comprised the court of appeals majority, and rejecting all the other justifications upon which the majority could not agree, Luckert found that the only remaining explanation for the statute was anti-gay bias.

In Romer v, Evans, the Supreme Court ruled that anti-gay bias is not a legitimate justification for a state law.

The court’s solution to this problem was not to invalidate the Romeo and Juliet law, but rather to strike out the brief phrase in the statute that limited its coverage to conduct between members of the opposite sex. The statute provides that if any part of it is declared unconstitutional, that section should be stricken and the rest of the statute continued in effect if the court concludes that the Legislature would want that result.

Because Limon has already served about five years, several years beyond the maximum sentence under the Romeo and Juliet law, he should be released promptly, especially since Kansas Attorney General Phill Kline—a Republican who has courted Christian conservatives on issues including opposition to abortion and the teaching of evolution—has conceded defeat, telling the press after the ruling was announced that he does not plan to appeal to the U.S. Supreme Court.

The court’s ruling is significant not only for mandating equal treatment for gay teens, but also for rejecting the spurious public health arguments made by the state, which callously invoked the specter of AIDS to justify anti-gay discrimination.

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