First published October 26, 2005, in the Chicago Free Press.
After an agonizing series of appeals and remands up and down the judicial system, on October 21 the Kansas Supreme Court finally overturned a Kansas law stipulating a 13-fold longer prison sentence for sex by teens with underage youths if the partners are same sex rather than opposite sex.
The case involved Matthew Limon, an 18-year-old sentenced to 17 years in prison for consensually fellating a male youth who was 14, just shy of his 15th birthday. Had the two been of opposite sexes, the maximum sentence would have been 15 months in prison.
Bizarrely, a Kansas appeals court upheld the sentence, whence it was then appealed to the U.S. Supreme Court. Having just decided its groundbreaking Lawrence decision striking down state sodomy laws, the Supreme Court remanded the case to the appeals court with instructions to reconsider in the light of Lawrence.
But in a stunning display of either judicial effrontery or obtuseness, despite the clear signal from the Supreme Court that Lawrence applied to this case, the appeals court once again upheld the draconian sentence, insisting that:
1. Lawrence did not apply because this was not a privacy issue and
2. The law protected minors from sexually transmitted diseases more common among homosexuals.
Appeals court judge Henry Green asserted further that the law:
3. Upheld traditional (i.e., anti-gay) sexual mores and
4. Promoted traditional (i.e., heterosexual) sexual development.
It was that decision that a unanimous Kansas Supreme Court just overturned, rejecting in turn each of the various trumped-up rationales for the law offered by Kansas Attorney General Phill Kline and the two judges in the majority.
"Trumped-up"? According to the New York Times, Kline argued in his legal brief that striking down the harsher penalties for gays would "begin a toppling of dominoes which is likely to end in the Kansas marriage law on the scrap heap ... allowing such combinations as three-party marriages, incestuous marriages, child brides, and other less-than-desirable couplings."
This is simply boiler-plate language from the religious right playbook, the argument being that if society cannot deny all equality for homosexuals and penalize them with the utmost severity, it cannot prohibit anything at all and society will collapse. Call it the "Cry Havoc!" defense.
Granted that state officials may and do say anything no matter how preposterous to try to justify existing laws, hoping that some mud will stick, and that gullible or bigoted judges will accept it. But still you have to wonder if the Kansas Attorney General could imagine no reason to prohibit a man from marrying his 8- and 9-year-old daughters that did not also require harsh prison sentences for teenage gay sex. If not, perhaps Kansas needs a smarter attorney general.
At any rate, the Kansas Supreme Court rejected all the arguments offered in support of the law in an opinion that could be summarized as: "What part of 'equal protection' don't you understand?"
The opinion by Justice Maria Lockert pointed out to begin with that "moral disapproval of a group cannot be a legitimate state interest." This follows directly from Lawrence and behind it Romer. It also constitutes a blow directly against the basic religious right claim that moral-often religious-disapproval is an excellent reason to regulate behavior.
Lockert also made short work of the disease transmission rationale for the law. She pointed out that the law was both over-inclusive because oral sex, the youths' activity, is unlikely to transmit HIV, and under-inclusive because it stipulated lighter penalties for heterosexual anal sex which is more likely to transmit HIV and other STDs. As the law failed to reach its purported aim, it lacked a justification for discriminating and so violated the equal protection provision of the Constitution.
The mistaken supposition by appeals court judges that early homosexual activity might induce a heterosexual youth to become homosexual, their view of all homosexual sex on the model of male anal sex, and their ignoring of the incidence of heterosexual anal sex, all bear witness to the ongoing ignorance of many judges about sexual behavior lamented by Kinsey decades ago.
That ongoing ignorance emphasizes the importance in legal cases involving gays-or other sexually related issues-of filing amicus briefs citing current scientific findings on sexual behavior. No one should assume that middle-aged and elderly judges know anything about sex other than their own behavior.
As 7th Circuit Court of Appeals judge Richard Posner in his 1992 Sex and Reason observed in evident frustration, "The dominant judicial, and I would say legal, attitude toward the study of sex is that 'I know what I like' and therefore research is superfluous."
Finally, it might be reasonable to wonder, as Judge Posner does, if Kansas did not get it backwards-if the age of consent and the penalties for violating the law should not be lower for homosexual than for heterosexual sex because in addition to the possibility of contracting sexually transmitted diseases, young women run the considerable risk of becoming pregnant. Such a discriminatory law would at least have the merit of being defensible on some rational basis.