The impact of the Supreme Court’s holding in the 1993 case, Lawrence v. Texas, which struck down Texas’ sodomy law directed at sexual conduct by persons of the same sex continues to be felt as the Kansas Supreme Court this week struck down a criminal statute similarly directed at same sex behavior in State v. Limon. Specifically, the Kansas court ruled that the state’s so-called “Romeo and Juliet” statute which permitted much lesser penalties for persons found guilty of having sex with minors near in age of the opposite sex than persons found guilty of having sex with the same group of protected minors but of the same sex unconstitutional as a violation of the Equal Protection Clause of the U.S. Constitution under the 14th Amendment. “[M]oral disapproval of conduct” is not enough to justify harsher penalties for same sex offenders than opposite sex offenders according to the ruling.
The disparity in how Kansas’ criminal law treated gay sexual offenders as opposed to straight sexual offenders could not have been more striking as it was in Limon. The case involved two young males housed at a school for developmentally disabled children. The offender, Matthew Limon, had just turned 18 one week before the consensual, sexual act occurred. As the court described Limon, intellectually he “falls between the ranges described as borderline intellectual functioning and mild mental retardation.” Limon engaged in a sexual act with a 14-year old, or a minor less than 4 years his age. According to the court, the minor “function[ed] in the upper limits of the range of mild mental retardation” and “consented to the sexual contact, and when he asked Limon to stop, Limon did so.” Limon was convicted under Kansas’ statute for criminal sodomy. Because Limon had also been convicted as a juvenile offender previously for committing sodomy, his penalty was elevated and he received a sentence of over 17 years in prison, in addition to having to register as a persistent sexual offender upon his release.
Under Kansas’ Romeo and Juliet statute, a much less harsh penalty is provided under the following circumstances for consensual sex acts when: 1) the victim is a child of 14 or 15; (2) the offender is less than 19 years of age and less than 4 years older than the victim; (3) the victim and offender are the only ones involved; and (4) the victim and offender are members of the opposite sex.. Limon met all of these conditions, except for the last, since his “victim” was of the same sex. Had his “victim” been a girl and had he been sentenced under the Romeo and Juliet statute, his maximum sentence would have been no more than 15 months instead of the 17-year plus sentence he received, and he would not have been required to registered as a sex offender.
When Limon initially appealed his decision, it was denied by Kansas’ Court of Appeals. While a request for writ of certiorari to the U.S. Supreme Court was still pending, the Lawrence decision was handed down, allowing Limon to renew his appeal in state court. Just one day after issuing this decision, the Supreme Court granted Limon's petition, vacated the judgment, and remanded the case to the Kansas Court of Appeals "for further consideration in light of Lawrence v. Texas."
The Lawrence decision overturned the high court’s earlier ruling in Bowers v. Hardwick, which upheld the constitutionality of state sodomy laws. A majority opinion by Justice Kennedy held that Texas’ sodomy law directed only at such sexual activity between persons of the same sex violated the defendant’ due process rights under the 14th Amendment. The Lawrence opinion found that the defendants had a protected liberty interest in engaging in the consensual sexual acts of their choice in the privacy of their home, which could not be infringed upon absent a legitimate state interest. The majority opinion by Kennedy said, “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."
While the Kansas Supreme Court based its opinion on the Lawrence decision, it held the Romeo and Juliet statute to be unconstitutional on a different basis. Instead, the Kansas court relied upon Justice Sandra Day O’Connors’ concurring opinion in Lawrence, which held the Texas sodomy law to be unconstitutional under the equal protection clause. She concluded her analysis in the opinion by stating: "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."
Under Equal Protection cases, the court applies one of three standards: strict scrutiny, intermediate scrutiny and the rational basis test. The level of scrutiny applied by the court is determined by the nature of the legislative classification and the rights affected by that classification. As a general rule, courts apply the rational basis test unless the legislative classification targets a suspect class or burdens a fundamental right.
The Kansas court first found that statute invoked involved a discriminatory classification, although not as bad as that in Lawrence, where an act between same sex partners was criminal while the same act between opposite sex partners was not criminal. While the acts of both same and opposite sex partners was criminalized in Limon, the presumptive penalties and added stigma of having to register as a sex offender made the law as applied to same sex offenders discriminatory.
The Kansas court rejected the plea of Limon to apply a strict scrutiny case because the Lawrence decision had not specifically found homosexuals to be a suspect class. Again, the Kansas court turned to O’Connor’s concurring opinion which suggested “"a more searching form of rational basis review" applies when a law exhibits a "desire to harm a politically unpopular group." The Limon court also observed that the Supreme Court had applied a rational basis test in finding in Romer that Colorado’s state law prohibiting local governments from enacting ordinances to protect gays and lesbians from discrimination violated the equal protection clause.
In applying the rational basis test, the Limon court relied upon the considerations applied by the lower Court of Appeals, which had upheld the statute. Those state interests in enacting the law according to the Court of Appeals included: (1) the protection and preservation of the traditional sexual mores of society; (2) preservation of the historical notions of appropriate sexual development of children; (3) protection of teenagers against coercive relationships; (4) protection of teenagers from the increased health risks that accompany sexual activity; (5) promotion of parental responsibility and procreation; and (6) protection of those in group homes.
The Kansas Supreme Court unanimously rejected the lower court ruling in finding no rational basis for the law. The court said: “We conclude that . . . the Kansas unlawful voluntary sexual relations statute . . . does not pass rational basis scrutiny under the United States Constitution Equal Protection Clause or, because we traditionally apply the same analysis to our state constitution, under the Kansas Constitution Equal Protection Clause . . . Furthermore, the State's interests fail under the holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest. As Justice Scalia [in his dissenting opinion] stated: ‘If, as the [United States Supreme] Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest,’ the statute cannot ‘survive rational-basis review.’ Because we determine the statute violates constitutional equal protection guarantees based upon a rational basis analysis, we need not reach Limon's other arguments that strict scrutiny should be applied, including his argument that the statute discriminates based on sex.
As a remedy for the unconstitutional statute, the court ordered the “offending language” stricken rather than nullifying the statute, which the court said was consistent with legislative intent because the statute contained a severability clause.
Reaction to the Limon decision was predictable. “Gay rights groups praised the ruling, while conservatives bitterly complained that the court intruded on the Legislature's authority to make the laws,” the Associated Press reported. Mathew Staver, attorney for the conservative Orlando, Fla.-based Liberty Counsel, told the AP that “the different treatment was justified by the state's interest in protecting children and families.” He also said the court does not have the right to rewrite the statute. "That's a legislative function," he said. "This is clearly a sign of an activist court system."
Patricia Logue, a senior counsel for the gay rights organization Lambda Legal, told the AP that “she hopes the decision will slow efforts in various states to enact legislation targeting gays.” "A lot of the reasoning used here by the state comes up again and again," she said. "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.'"
According to the report, the Kansas Attorney General does not plan to appeal the case to the U.S. Supreme Court. This case should serve as a warning to the Indiana General Assembly that its penchant for pursuing legislation aimed at what it perceives to be "unpopular groups", such as gays and lesbians, will have tough sledding in the courts in light of Lawrence and its prodigy.
No comments:
Post a Comment