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Kansas Court Forbids Higher Punishment for Same-Sex Misconduct:
The Kansas Supreme Court issued its decision in Kansas v. Limon today, invalidating a Kansas statutory scheme that imposed higher punishments for same-sex sexual misconduct than opposite-sex sexual misconduct.

   A week after he turned 18, Matthew Limon had oral sex with a 14 year old boy. The act occurred in February 2000, when both were students at a school for developmentally disabled children. Limon was charged with criminal sodomy under Kansas law, K.S.A. 21-3505(a)(2), which states that "[c]riminal sodomy is . . . sodomy with a child who is 14 or more years of age but less than 16 years of age."  Limon was convicted and sentenced to serve a very severe sentence, 206 months (17 years, 2 months) in prison; the high sentence apparently was due in part to Limon's prior criminal record.

  The basis of Limon's legal challenge is the existence of the Kansas "Romeo and Juliet" statute, K.S.A. 21-3522, enacted in 1999, which imposes lower sentences than would otherwise exist for a specific set of sex offenses. Specifically, the statute offers much lower punishments for sexual misconduct if (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. If Limon had been convicted under this statute, he would have received about 14 months in prison, not 206.

  Limon argued that Kansas law violated the equal protection clause of the Fourteenth Amendment because if the act had taken place between opposite sex participants, Limon would have received a much lower punishment under the Romeo & Juliet statute than he did under the criminal sodomy statute. The Kansas Supreme Court agreed, finding that the different treatment did not survive rational basis scrutiny and was therefore unconstitutional under the Equal Protection clause:
  We conclude that K.S.A. 2004 Supp. 21-3522, 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. The Romeo and Juliet statute suffers the same faults as found by the United States Supreme Court in Romer and Eisenstadt; adding the phrase "and are members of the opposite sex" created a broad, overreaching, and undifferentiated status-based classification which bears no rational relationship to legitimate State interests. Paraphrasing the United States Supreme Court's decision in Romer, the statute inflicts immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it. 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 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." 539 U.S. at 599 (Scalia, J., dissenting).
  One interesting aspect of the court's opinion is that the defendant wasn't actually charged under the statute that the court found unconstitutional, at least if I am reading the opinion correctly. As a technical matter, the defendant was convicted of sodomy; the court found the Romeo and Juliet statute unconstitutional; remedied the situation by rewriting the R&J statute in a way that made it constitutional; reversed the conviction for sodomy, even though that statute technically wasn't challenged; and then ordered the state to retry Limon (of they still want to press charges) under the new rewritten Romeo & Juliet statute. Am I right about that? I suppose they did this for entirely pragmatic reasons, but it's somewhat unusual.

  A second interesting aspect of the opinion is that the merits (if not the remedy) are based on federal law, which means that the U.S. Supreme Court will have the opportunity to review the decision if Kansas petitions for certiorari.
Quarterican (mail):
206 months vs. 14?!

Is there precedent for appealing/overturning a decision on the basis that the defendant ought to have been prosecuted under a different statute? This certainly seems fair to me, but I worry about its legality.
10.22.2005 12:41am
Matt F.:
It seems to me, and please correct me if I'm wrong, that the Kansas court also relied upon the Kansas Constitution (section 1) in coming to its decision. Granted, the references to the state constitution were mainly in passing, and the bulk of the analysis rested on federal constitutional doctrine, but I'm under the impression that the fact that the Kansas court overturned the conviction/sentence on state law grounds, in addition to federal law grounds, is dispositive. In other words, even if the Supreme Court were to grant cert, it could only overturn the Kansas court's decision insofar as it relied on federal constitutional doctrine. Because the Kansas court based its decision equally on Kansas law, the Supreme Court's decision would be irrelevant since there were independent state law grounds for the decision. Therefore, the Supreme Court won't grant cert and the decision should stand. Any thoughts on this?
10.22.2005 1:06am
Reason:
Kansas AG is quoted as saying he probably won't seek cert.
http://www.nytimes.com/2005/10/22/national/22kansas.html
10.22.2005 1:46am
Randy R. (mail):
Matt, basically you are correct. The US Supreme court almost always allows state courts to interpret state law. If the Kansas court based their decicion on both state and federal law, then the Supreme court would only be able to rule on the federal portions, which would have no practical effect.

However, the exception is where the Supreme Court believes either that the Kansas court's opinion is arbitrary or capricious, or plainly ignored its own law, then it can intervene. This rarely happens of course. The other exception is if Kansas law itself is somehow in conflict with the US Constitution or federal laws. Then it becomes a conflict of laws issue.

Not having read the opinion, I doubt either exception would apply. However, Scalia and Thomas hate gays so much, they may be able to persuade two more Justices to vote in favor of cert.
10.22.2005 1:48am
Cornellian (mail):
Not having read the opinion, I doubt either exception would apply. However, Scalia and Thomas hate gays so much, they may be able to persuade two more Justices to vote in favor of cert.

Scalia definitely. Thomas I'm not so sure about. He seems to have much more of a libertarian streak than Scalia.
10.22.2005 1:52am
Randy R. (mail):
The court did the unusual in this case, because, if i am not mistaken, this case is five years old. The boy was convicted and sentenced to the higher length of punishment. He appealed, and he was upheld, and appealed to the US Supreme Court. That term, the Court held in Lawrence v. texas that gays must be treated the same as straights in most every matter. They remanded this case back to Kansas for resentencing in light of Lawrence. The lower court then reaffirmed it's original sentence, and the in appeal, the original sentence was upheld again.

So by this time, the Kansas lower courts indicated that they were going to ignore the US Supreme Court, and come hell or high water, this boy was going to get a heavy sentence. In light of the intransigence of the lower courts, for judicail economy, it was proper for the higher court to take matters in their own hands and end the matter.

It's a travesty that it took this long, and the AG should be ashamed of himself.
10.22.2005 1:54am
Cornellian (mail):
I'm just a bit curious as to why this couldn't have been argued as a gender discrimation case attracting intermediate scrutiny. His (much) higher sentence was contingent on him being male, whereas if he had been female he would have obtained the beneft of the "Romeo and Juliet" sentence reduction.
10.22.2005 1:55am
OrinKerr:
Matt F, Randy R,

My recollection is that a state constitutional provision that is interpreted to exactly mirror a federal constitutional provision does not provide an independent and adequate state ground that would bar U.S. Supreme Court review. Kansas has tied its state EP clause to the federal EP clause; it seems odd, but a decision by the U.S. Supreme Court interpreting the the federal EP clause would thus change the Kansas constitution, too. That's my recollection, at least. If the Kansas AG doesn't want to seek review, though, then that settles it.
10.22.2005 2:03am
Cornellian (mail):
That does strike me as quite odd, since the interpretation of a state constitutional provision that is identical to its federal counterpart can still be influenced by external considerations (such as other clauses of the constitution) that may be quite different. About the only way I can see this making sense is if the state supreme court has previously ruled that state EP is intended to be identical to federal EP.

Do you have any authority?

My recollection is that a state constitutional provision that is interpreted to exactly mirror a federal constitutional provision does not provide an independent and adequate state ground that would bar U.S. Supreme Court review. Kansas has tied its state EP clause to the federal EP clause; it seems odd, but a decision by the U.S. Supreme Court interpreting the the federal EP clause would thus change the Kansas constitution, too. That's my recollection, at least. If the Kansas AG doesn't want to seek review, though, then that settles it.
10.22.2005 2:12am
Bruce Wilder (www):
I thought it was a particularly nice touch to quote Scalia, in support of the principle that "the promotion of majoritarian sexual morality is not . . . a legitimate state interest".

Someone in Kansas has a sense of . . . what? humor? irony?
10.22.2005 2:13am
Ken Willis (mail):
The case is wrong. It is more harmful to a 14-year male to be sexually abused by an 18-year old male, than it is to a 14-year old female to be sexually abused by an 18-year old male. Both are harmful and should be criminally punished, but male sexual abuse of a younger male is the more harmful. It is, in fact, devastating.

The "rational basis" test is easily, and obviously, satisfied in this case.

I'll bet that few if any reading here will agree with that. But I believe that if you disagree you probably went to law school or some other form of graduate educaction because only a highly educated person could fail to recognize something so obvious.
10.22.2005 2:27am
OrinKerr:
Cornellian writes:

**************************
"That does strike me as quite odd, since the interpretation of a state constitutional provision that is identical to its federal counterpart can still be influenced by external considerations (such as other clauses of the constitution) that may be quite different. About the only way I can see this making sense is if the state supreme court has previously ruled that state EP is intended to be identical to federal EP.

Do you have any authority?"
**************************

Well, Limon itself says that Kansas EP law has previously been held to mirror federal EP law. For authority that this permits U.S. Supreme Court review, see Pennsylvania v. Muniz, 496 U.S. 582, 588, n. 4 (1990):

*******************
The Superior Court's opinion refers to Art. 1, § 9, of the Pennsylvania Constitution but explains that this provision " 'offers a protection against self-incrimination identical to that provided by the Fifth Amendment.' " 377 Pa.Super., at 386, 547 A.2d, at 421 (quoting Commonwealth v. Conway, 368 Pa.Super. 488, 498, 534 A.2d 541, 546 (1987)). The decision therefore does not rest on an independent and adequate state ground. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).
********************

Ah, nothing like a little AISG late on a Friday night.
10.22.2005 2:32am
Medis:
Ken,

K.S.A. 21-3522 applies only to "voluntary" sexual relations. Are you still sure that your claim applies?
10.22.2005 2:33am
Ken Willis (mail):
P.S. Don't anyone dare call me a homophobe. There is not one ounce of hostility to gays in my body. Nothing I said is anti-gay.
10.22.2005 2:35am
Ken Willis (mail):
Yes. The statute criminalizes such "voluntary" conduct, as in most other states but with lesser penalities than if there is a greater age difference. It is essentially like most statutory rape statutes which usually carry lesser penalties if offender and victim are closer in age. Kansas just goes farther and recognizes another category for same-sex or opposite-sex.

This aspect of statutory rape statutes is wise also because it is more harmful to an underage female if the male is 45 than if he is 20 and she is 15.
10.22.2005 2:41am
Kate1999 (mail):
Ken,

The great thing about obvious arguments is that they are very easy to make persuasively. I am looking forward to hearing your argument, which I assume you will post soon.
10.22.2005 2:45am
Ken Willis (mail):
It's not obvious to me what you mean, Kate.
10.22.2005 2:51am
Kate1999 (mail):
I was referring to your 1:27 post. I guess I assumed you were going to explain why you're right and they're wrong.
10.22.2005 2:57am
Justin (mail):
"However, the exception is where the Supreme Court believes either that the Kansas court's opinion is arbitrary or capricious, or plainly ignored its own law, then it can intervene."

Only if the state court decision, by being arbitrary and capricious, violates independantly a constitutional right (see Bush v. Gore for a laughable example, which was, of course, wrongly decided).

Orin, I know the Kansas Supreme Court action seems strange, but it also seems correct. Otherwise, the existance of the 2nd law would prevent the 2nd law from ever being challenged, and prevent the disparate treatment from being remedied, since it is unlikely that a male having sex with a female getting the lesser sentence would have standing to appeal.
10.22.2005 3:16am
Medis:
Ken,

I understand the point behind statutory rape laws. But I wanted to see if you really meant that a 14-15 year-old male voluntarily having sex with a 14-18 year-old male is so much more harmful than a 14-15 year-old female voluntarily having sex with a 14-18 year-old male such that the offender in the first case can receive 15 times the penalty.
10.22.2005 3:35am
BobNelson (mail):
Ken Willis:

You ask not to be called a homophobe. Well, maybe you jumped to conclusions about the case. Maybe there is a specific reason you would have such a vehement reaction. Feel free to clarify, if you wish.




The case is wrong. It is more harmful to a 14-year male to be sexually abused by an 18-year old male, than it is to a 14-year old female to be sexually abused by an 18-year old male. Both are harmful and should be criminally punished, but male sexual abuse of a younger male is the more harmful. It is, in fact, devastating.


As others have pointed out, the contact was consentual. I've been following this case for years and, if I recall correctly, Limon and the younger boy had had sexual contact before (and not been discovered). Sex between males isn't traumatic for the people involved if they want to do it.

I might agree that involuntary sexual contact could be traumatic and that homosexual contact could be devastating for heterosexuals. Would you concede that heterosexual abuse might be more traumatic for a gay kid?


It is more harmful to a 14-year male to be sexually abused by an 18-year old male, than it is to a 14-year old female to be sexually abused by an 18-year old male.


Leaving aside the heterosexist/homophobic question (that's not an accusation), aren't you forgetting something? The risk of pregnancy.
10.22.2005 5:26am
BobNelson (mail):
Of course, when other people pointed it out, they spelled it right.

sigh
10.22.2005 5:27am
Public_Defender:
If this case is representative, Kansas has a very professional attorney general. He said he voted against the law in the legislature because he disagreed with it. But as attorney general, he fulfilled his duty to defend the law in court. He did the job with zeal, but now he's gracious in defeat.
10.22.2005 7:35am
Visitor Again:
The problem is merely one of remedy for a constitutional violation and the courts traditionally have broad equitable powers in that regard. The law under which the defendant was charged is constitutionally invalid as applied because it imposes a harsher punishment than the second law in constitutionally indistinguishable circumstances. Therefore the punishment that may be imposed constitutionally under the law that was charged is limited to tht imposed by the second law. It seems straightforward to me.

A similar problem arises in a lot of equal protection cases. If application of castration to a certain subclass of offenders is constitutionally invalid because it is not imposed on all members of the class, should the court prohibit imposition of castration altogether or should it hold that all members of the class should be castrated? See, if memory serves, Skinner vs. Oklahoma, where the Court simply invalidated the castration for the subclass. The state legislature could, of course, have turned around and authorized castration across the board.
10.22.2005 8:41am
John Jenkins (mail):
The Supreme Court can take and reverse this case. This case is like Michigan v. Long, 463 U.S. 1032 (1983). Just because they waved the Kansas Constitution around, the fact that they depended on Romer to interpret it takes them out of the independent and adequate state grounds doctrine. In the absence of a "plain statement that the decision [] rested on an adequate and independent state ground" jurisdiction will lie. Id. at 1044.
10.22.2005 10:43am
AppSocREs (mail):
I think Ken Willis has made a point here that is worth looking at more closely, even if it does not apply to the case in question. The laws involving sexual assault are currently premised partly on the principle that such assaults are more serious than non-sexual assaults precisely because they strike at the emotional and spiritual foundations of one's being in a way that a mere physical assualt does not. (In this regard they resemble the crimes that are denoted "mayhem" in the Commonwealth of Massachusetts.) A sexual assault that violates gender identity, e.g., a heterosexual or homosexual male raping a heterosexual male, may -- and indeed research on the effects of pedophilia suggests it does -- have more severe emotional consequences than an assault not involving such a violation. Could legislation be drafted that fairly and effectively addresses this concern? Should it be?
10.22.2005 11:13am
Anderson (mail) (www):
Public Defender:

If this case is representative, Kansas has a very professional attorney general.
Gracious of you, but I wouldn't go that far. The existence of a statute does not suspend prosecutorial discretion ... does it?

Ken Willis: if it walks like a duck and quacks like a duck ... etc.
10.22.2005 11:44am
nk (mail) (www):
Bob Nelson:

I too have been following the case for years.
1. The term "consensual" cannot be used in the context of mentally disabled fourteen-year old.
2. The boy had been assaulted once before. The second time he resisted and then told his parents which initiated the prosecution. It was not "discovered".
3. Pedophilia has nothing to do with homosexuality or heterosexuality. The choice of victims of pedophiles depends on proximity and opportunity. They are monsters who are attracted to children. Male pedophiles are more likely to be allowed in the proximity of boys than in the proximity of girls, and the female pedophiles etc. This alone is a sufficient rational basis for a harsher punishment. There is greater danger.

This case is definitely a departure from substantive criminal law. Neither the U.S. Supreme Court nor my State have applied this analysis to non-death penalty cases. As long as the statute sufficiently apprised the defendant of the criminality of his conduct he cannot claim proportionality by pointing to punishments for other types of conduct. This is a job for the legislature and not the Courts. As for the Kansas AG not wanting to pursue cert in the U.S. Supreme Court, the case has already gone up once, been remanded for review in light of Lawrence v. Texas and gone up again through the Kansas appeal process. The AG cannot be blamed for not wanting to spend any more of his office's resources.
10.22.2005 11:45am
jrose:
nik,

Did the AG argue he would have sought the same higher penalty even if the 14-year old had been a girl? Could he under Kansas law?
10.22.2005 12:06pm
jrose:
Orin,

The Kansas Supreme Court gave a lengthy analysis of why they rewrote the statute instead of invalidating it.
10.22.2005 12:19pm
Ken Willis (mail):
I thought the Kansas statute was essentially a statutory rape statute that criminalizes unforced sexual contact between adults and underage individuals, but provides different penalties depending upon the exact age difference of the participants and whether they are of the same or opposite sex. Some of the comments seem to indicate that it criminalizes unforced sexual contact even when both participants are underage. I can't imagine that's true, but maybe it is.
10.22.2005 12:38pm
Ken Willis (mail):
The Kansas Supreme Court gave a lengthy analysis of why they rewrote the statute instead of invalidating it.

They have no right to do that. The Kansas legislature should reaffrim the statute and tell the Kansas Supreme Court to conform its behavior to the rule of law.
10.22.2005 12:44pm
Shelby (mail):
I'm not sure that
"or, because we traditionally apply the same analysis to our state constitution, under the Kansas Constitution Equal Protection Clause"
in the Limon case is the same as
"offers a protection against self-incrimination identical to that provided by the Fifth Amendment"
in PA v Muniz.

"The same analysis" is arguably less deferential to the federal interpretation than is "identical". I think a plausible argument can be made either way, so it's not a cut-and-dried appealable situation.
10.22.2005 12:52pm
Randy R. (mail):
I think can all can, or should, agree, that whatever the circumstances, 17 years of year of jail for a blowjob by an 18 year old is bit of overkill, don't you think? I mean, if five years isn't enough of a deterent, then 17 wouldn't be.

And the boy was hardly some old predator -- He was 18 at the time! Considering the fact that most 18 year olds in this country have given or received a consensual blowjob, this case strikes me as hysteria over gay sex.

No, the AG did not have to keep appealing the case, and in this case he should not have. He certianly he had a duty to follow Lawrence v. Texas. After the Supreme Court ruled on the matter in Lawrence, his legal obligation was to follow the law and give the Limon to the lesser sentence. But he didn't -- he kept trying to get the courts to ignore the Supreme law of the land, and in fact succeeded, until now. The fact that he kept relitigating the case was a violation of his public trust. It was a complete waste of public funds and a travesty that Limon lost so much of his life for prosecutorial misconduct.
10.22.2005 1:11pm
Guest99:
The Kansas Supreme Court says it's unconstitutional to consider whether statutory rape is heterosexual or homosexual in handing out penalties. Wrong: it may be a regrettable public policy, but it's certainly not unconstitutional.

The Kansas court misapplied rational-basis review in ignoring that because AIDS is more common in the gay community than in the heterosexual population, so homosexual anal sex is riskier than heterosexual anal sex. (Yes, I know that's not true for lesbians; I'll get to that later).

The court doesn't even bother to address the U.S. Supreme Court's Michael M. decision upholding sex-discriminatory statutory rape laws. Michael M. held that you can consider sex in handing out penalties, by totally exempting women from punishment for statutory rape while prosecuting men only, even though sex classifications, unlike sexual orientation classifications, are presumptively unconstitutional.

How can it be less permissible to have a classification based on sexual orientation -- which the Kansas Supreme Court held was subject to mere rational basis review -- than a sex-based classification, which is supposedly subject to heightened scrutiny?

Don't tell me the difference is because heterosexual sex but not homosexual sex can lead to pregnancy. Statutory rape laws -- including ones that only reach male but not female perpetrators -- reach a lot more than just vaginal sex. They reach heterosexual oral sex, which is less likely to lead to disease than either vaginal sex or oral sex between gay men.

The Kansas Supreme Court's finding that the law didn't survive rational basis review flowed from a failure to grasp a statistical concept called the Bayes Theorem. It observed that anal sex with an infected person is no more dangerous if the act is homosexual than if the person is heterosexual.

This is true, but irrelevant. Infected people often don't admit to being such to their partners. So you have to go by statistical averages. And statistically, more gay men have AIDS than straight men, meaning that statutory anal rape is more dangerous when it involves a gay man with a boy than a straight man with a girl.

Yes, I know lesbians don't pose this risk, and lots of gay men don't have AIDS. Under rational-basis review, however, there does not (as the Supreme Court emphasized in Garrett and Kimel) have to be any precision between a discriminatory classification and the underlying reason for it to be upheld. It just has to have some correlation, no matter how weak. The statute doesn't have to be a perfect fit.

So the fact that AIDS is more prevalent among gay people as a class (even though rather rare among lesbians) is sufficient reason for sexual-orientation classifications in a statutory rape law.

The Kansas law was harsh, but not unconstitutional. The Kansas Supreme Court was wrong to act as a super-legislature.
10.22.2005 1:54pm
jrose:
Guest 99: How can it be less permissible to have a classification based on sexual orientation -- which the Kansas Supreme Court held was subject to mere rational basis review -- than a sex-based classification, which is supposedly subject to heightened scrutiny?

Don't tell me the difference is because heterosexual sex but not homosexual sex can lead to pregnancy.


The Court held in Michael M. that teenage pregnancy was the sole reason it upheld the law (Blackum providing the fifth vote concurring in the judgement).
10.22.2005 2:27pm
Public_Defender:
Gracious of you, but I wouldn't go that far. The existence of a statute does not suspend prosecutorial discretion ... does it?

I agree that the local prosecutor should have exercised some better discretion in this case. But once the defense put the constitutionality of a statute at issue, the attorney general had a duty to defend the democratically enacted statute.

As long as there are non-frivolous arguments, an AG should not concede that a statute is unconstitutional. If you are a liberal, imagine John Ashcroft conceding the constitutionality of an environmental law in a fight with a polluter. The duty to defend prevents attorneys general from conspiring with litigants to throw out statutes the AG's don't like.

I once watched a prosecutor all but concede the unconstitutionality of a statute. I agreed that the statute was wrong and probably violated the constitution. But I lost a lot of respect for that prosecutor and her boss.

As to the repulsiveness of the cause--I have defended child molesters, rapists, and killers, so I can't begrudge the Kansas AG for defending a statute.

The adversary system only works if everyone does their job, just like the Kansas AG did in this case.
10.22.2005 2:27pm
jrose:
Guest 99: Under rational-basis review, however, there does not (as the Supreme Court emphasized in Garrett and Kimel) have to be any precision between a discriminatory classification and the underlying reason for it to be upheld. It just has to have some correlation, no matter how weak. The statute doesn't have to be a perfect fit.

How do you explain Romer?
10.22.2005 2:29pm
jrose:
Public_Defender,

I am generally persuaded by your adversarial-system argument, but doesn't it bother you more when adherence to that system results in an innocent person rotting away in jail versus trying to keep a child molestor out of jail?
10.22.2005 2:40pm
John Jenkins (mail):
Jrose, Romer wasn't decided on ratonal basis review. The court called it rational basis, but was not as deferential as that standard would indicate, going out of their wat not to apply rational basis review so we get "rational basis plus." See also Cleburne.
10.22.2005 3:19pm
jrose:
John Jenkins,

In your view then, should (and did) the Kansas Supreme Court use so-called "rational basis plus"?
10.22.2005 3:25pm
Randy R. (mail):
Still don't agree with your argument of the AG for two reasons. Yes he has a duty to uphold and fight for the constitutionality of a law.

BUT, he also swears upon office to uphold the US Constitution. Therefore, if he truly believes a law is unconstitutional, it is okay for him to concede that it is. What he may do in that case is appeal the decision and then inform the court that he believes the law is unconstitutional, in effect, agreeing with the plaintiff. Then it is up to the court to decide if both parties are correct or not.
Secondly, the law of the land by the time this case came around, was Lawrence, and the Court remanded the case to for sentencing in light of Lawrence. It was therefore his duty to follow the law of the Supreme court, regardless of whether he agreed with it or not, and regardless of what the legislator wanted.
10.22.2005 3:30pm
jrose:
Randy R,

What about Defender's Ashcroft analogy? If Ashcroft truely felt an environmental regulation were unconstitutional, should his brief agree with the plaintiff's?

In order to conclude that the AG acted improperly, there must not exist any plausible argument that Kansas could win in light of Lawrence. I believe such a plausible argument does exist (even though I do not find that plausible argument persuasive).
10.22.2005 3:42pm
Randy R. (mail):
Guest99:

No one is arguing that Limon should get off scot-free. The issue is whether there was a rational basis for treating an opposite sex differently from a same sex crime. The courts COULD have merely stated that everyone who has underage sex is sentenced to 17 years in jail. But they refused to do that. Why? I suspect it has nothing to do with health, and everything to do with punishing gay people out of moral disapproval, which Lawrence ruled is not sufficient.

But the crux of your agrument, is that the government has an interest it protecting society from gay men transmitting AIDS via anal sex. That may very well be true, but even if so, the statute is overly broad, and also under inclusive. Over broad because he treats lesbian sex the same as gay sex for no good reason that even you concede. Overly broad because not all gay men are HIV pos, and overly broad because not all gay men engage in anal sex everytime they have sex. It's underinclusive, because it doesn't punish those opposite sex couplings where the man is HIV pos and he has anal sex with a woman. If the state truly wants to protect its members, then it must come up with a better fit.

In addition, the Supreme Court rejected that argument desively in Lawrence. Texas argued that sodomy laws must apply to gay sex as opposed to hetero sex because of the state has an interest in protecting its members' health, which is the argument you are making. You lost it in Lawrence. Sorry. So the
Court was correct, and voted 9-0 that way without dissent.
10.22.2005 3:42pm
Randy R. (mail):
If anyone truly believes that society should protect itself from AIDS, then there is simple way to do so -- rewrite the law to eliminate the problems of treating gay and straights differently. We know that the AIDS virus can be transmitted with unprotected anal sex, where either partner is positive (not just the penetrating partner). Here's my shot"

"Any person who has anal sex with another person knowing that he or she is HIV positive may be subject to greater criminal penalities."

Guest99, this would accomplish your goal of protecting society from the transmission of the virus, limits the penalities to those who actually have the disease, treats all genders and sexual orientations equally, and doens't rely on statistics, which may be unreliable (as you admit) or change over time (the fastest rate of HIV growth is among black women).

If you are that concerned about AIDS, then please suggest this formulation to your state rep. Tell him it's your idea....
10.22.2005 3:55pm
Randy R. (mail):
JRose: Your argument about the Ashcroft analogy is in point. Actually, I have a better one -- in the early 80s, the Reagan Justice department did just that with Bob Jones University. BJU discriminated based on race, and yet was an IRS tax-exempt organization, and the IRS attempted to revoke it's tax-exempt status. Edwin Meese believed that it was entitled to tax-exempt status and argued before the US Supreme Court on various grounds that it should remain so. I forgot the outcome of the case.

However, there were the same arguements, that the AG should uphold the laws, not selectively enforce them, not decided which ones were constitutional or not and so on. But that is exactly what he did, and he was allowed to do so.

The moral of the story? Make sure you understand the political philosophy of those running for AG in your state, or those who appoint them. It all comes down to YOU -- your vote really matters, and if you voted for the AG, don't complain how he handles his or her cases.
10.22.2005 4:02pm
Public_Defender:
I am generally persuaded by your adversarial-system argument, but doesn't it bother you more when adherence to that system results in an innocent person rotting away in jail versus trying to keep a child molestor out of jail?

Yes, it does bother me. But, to paraphrase an ecomonic argument, the adversarial system is the worst legal system around, except for everything else.

In this case, the AG might have been able to agree to an appeal bond or pushed for a plea bargain. Not knowing the Kansas system or the specifics of this case, I'm reluctant to speculate. It's possible that the local prosecutor, not the AG, had ultimate control over negotiated solutions. It's also possible that the defendant turned down a good offer in order to fight the case.
10.22.2005 4:46pm
Noah Snyder (mail):
Someone wrote "Scalia and Thomas hate gays so much..."

I think it is exceedingly unfair to fail to distinguish between

Clarence "I write separately to note that the law before the Court today 'is... uncommonly silly'" Thomas

and

Antonin "What a massive disruption of the current social order, therefore, the overruling of Bowers entails" Scalia.
10.22.2005 6:09pm
chris (mail):
So good of you Noah,

Now how about everyone actually sticking to arguments rather than divining how Scalia feels about gays?

Writing "What a massive disruption of the current social order, therefore, the overruling of Bowers entails" simply does not imply gay hatred.
10.22.2005 6:23pm
Penta:
I am, ah...curious.

NK noted that the 14 y/o in this case was mentally disabled.

Is that true?

If it is...why the hell are we arguing? Bluntly put, that makes this seem more forcible rape than statutory.
10.22.2005 7:19pm
anonymous22:
The whole conflating of position on same-sex marriage/attitude towards gays is just utterly poisonous. It is a dictatorial tactic. My feeling is this decision extends Lawrence much further than the Court would like at this point. It is a leap to go from saying the state can't outright ban homosexuality to say that any law favoring heterosexuality over homosexuality is also unconstitutional.
10.22.2005 7:27pm
Cornellian (mail):
Guest 99: Under rational-basis review, however, there does not (as the Supreme Court emphasized in Garrett and Kimel) have to be any precision between a discriminatory classification and the underlying reason for it to be upheld. It just has to have some correlation, no matter how weak. The statute doesn't have to be a perfect fit.

How do you explain Romer?


Around my law school the ConLaw profs call Lawrence v Texas "rational basis with teeth." I think you could describe it as "OK this time you really do have to be rational, instead of the automatic government win that rational basis normally entails." I think of it (and Romer) as something that would normally be a rational basis situation, but the legislative classification appears to be a product of bare animus towards a politically unpopular group. I don't think there's really any doubt that that's what was going on with the Kansas legislation. They don't have the political support anymore to enact an across the board ban on same sex relations, so they do so as much as possible around the margins, much like Jim Crow legislation in the South after the Civil War.
10.22.2005 8:07pm
Shelby (mail):
Penta:

Both "victim" and defendant were mentally disabled; they met in a group home. (I put defendant in scare-quotes because we don't know much about the underlying relationship and consent, aside from age issues.) They had previously had similar relations; it's not clear whether the defendant had yet turned 18 at that time. This may be a straightforward molestation for all I know, or it may be a relationship desired by both, or something in between.
10.22.2005 8:24pm
Penta:
Shelby:

Then we have a major problem.

One, the "victim" may be unable to consent. A 14 y/o with Autism or Downs Syndrome...It's open whether they'd understand what was going on.

Two, the defendant presents an interesting case. Depending on their conditon, it's a question: COULD they form a mens rea? Let alone whether they could assist in their own defense.
10.22.2005 9:45pm
Randy R. (mail):
The defendant was described as being just above the mark for mental retarded. Now I know that statory rape means just that -- rape regardless of whether a mens rea was actually formed by the perpetrator. The state need only prove the act and the age, and SR is proved.

Nonetheless, in this case, what justice is served by putting an borderline mentally retarded man in jail until he is 35 years old for just giving a blow job. (I don't think anally intercourse was ever alleged?) That's why I think the AG was shameless in his zeal for prosecuting this case.

Regardling Scalia and Thomas -- they have made their views about gays plain both in their opinions (Thomas concurred with Scalia in Lawrence v. Texas) but also their speeches, where they have both fretted about the downfall of civilization due to immorality, which in their view is primarily about gays. Thomas' wife works at the Heritage Foundation, which is very anti-gay (check their website). Is any of this relevant? Not really -- but don't ever look to them for a sympathic view of gays....
10.23.2005 1:33am
BobNelson (mail):
NK:

1. The term "consensual" cannot be used in the context of mentally disabled fourteen-year old.


Obviously it can be because even the prosecutor acknowledged the consensual nature of the sexual contact.


2. The boy had been assaulted once before. The second time he resisted and then told his parents which initiated the prosecution. It was not "discovered".


No, the boy had had sex with the defendent before (before the defendent turned 18). He did not "resist". He asked that Limon stop sometime during the bj, and Limon stopped.


3. Pedophilia has nothing to do with homosexuality or heterosexuality.


How dare you even bring up pedophilia in this case? Teens have sex, usually with each other. Crossing the 18yo line is quite common, and the law recognizes that with Romeo &Juliet laws, etc. Why do you want to criminalize sex?

Maybe we should rename "playing doctor" to "playing courtroom"...
10.23.2005 4:49am
spectator:
Randy R. wrote:

Regardling Scalia and Thomas -- they have made their views about gays plain both in their opinions (Thomas concurred with Scalia in Lawrence v. Texas) but also their speeches, where they have both fretted about the downfall of civilization due to immorality, which in their view is primarily about gays. Thomas' wife works at the Heritage Foundation, which is very anti-gay (check their website). Is any of this relevant? Not really -- but don't ever look to them for a sympathic view of gays....

Both Scalia and Thomas come from the natural law tradition, which makes them anti-sodomy, not anti-gay. I would be quite surprised if either of them has much sympathy for a law that distinguishes between heterosexual and homosexual sodomy.
10.23.2005 2:16pm
jrose:
Both Scalia and Thomas come from the natural law tradition, which makes them anti-sodomy, not anti-gay. I would be quite surprised if either of them has much sympathy for a law that distinguishes between heterosexual and homosexual sodomy.

The Texas law in Lawrence was such a law. They had sufficient sympathy to find the law constitutional.
10.23.2005 2:32pm
Ernest Hollingsworth (mail) (www):
Moral disapproval of a group cannot be a legitimate governmental interest

The mischief done by the Lawrence decision has no end. Not that the Kansas statute in question was great law. Or even consistent. The sentence of over 200 months was egregious on some basis, but not that morals legislation itself is unconstitutional.

The Lawrence contention does not stand the laugh test. Lawrence posits that morals legislation has been unconsitutional for over a hundred years and nobody knew it. Even though the authors of the constitution and it amendments thought otherwise, morals legislation was unconstitutional? This conflates the ideas of "unfashionable" with "unconstitutional".

If the morality of the society does indeed change, it is the elected representitives of the people who have the right to so decide, not the courts.

Yet the R&J statute, which the court found constitutional as applied to heterosexual liasons, is clearly morals legislation, is it not? Then on what basis did the court decide? Fashion.
10.23.2005 3:29pm
Penta:
Bob, re your 1:

Having spent much of my HS years with a kid w/ Downs Syndrome in one of my classes, I can tell you...Not necessarily.

The 14 y/o may have said Yes, but did he have much of a clue what he was saying?

With some conditions (Downs Syndrome, Autism), the verdict would be...It would be unlikely.

So...I wouldn't be so sure, OK?
10.23.2005 4:14pm
Hattio (mail):
Randy R.


As I understand the history of this case, the local prosecuter got a conviction, then it was appealed by the criminal defendant, who lost everywhere but the US Supreme Court. Then it was remanded and the trial court re-affirmed the sentence. This Kansas Supreme Court victory (for the criminal defendant) is the first chance the AG had to not pursue it further. Unless you are arguing he should have refused to respond to an Appeal at some point in the chain.
10.23.2005 6:35pm
Shawn (mail):
Randy R puts forth this as an example:

"Any person who has anal sex with another person knowing that he or she is HIV positive may be subject to greater criminal penalities."


Randy, If I were a person at best uncaring and at worst willful about transmitting HIV, why would I ever get myself tested? Simply by not submitting to a test, I am free of your greater criminal penalties.

Also, aside from AIDS, there is pregnancy (as mentioned earlier)and hepatitus B &C. I don't think HepC is as hard to get as HIV.

If public health is a reason to increase punishment, only choosing a primarily "gay" disease (in the West) seems willfully shortsighted.
10.24.2005 10:59am
Appellate Junkie (mail):

NK: 1. The term "consensual" cannot be used in the context of mentally disabled fourteen-year old.

BobNelson: Obviously it can be because even the prosecutor acknowledged the consensual nature of the sexual contact.


Well, you’re both right. Obviously the younger boy was incapable of legally consenting.

Of course, both teenagers were all but indistinguishable in their levels of cognitive impairment, with one being three years and five weeks older than the other. One might—but Mr. Limon (the older boy) did not—argue that the defendant was also incapable of consenting given that he was but one week past his 18th birthday and obviously did not posses the faculties of the typical 18 year old.

The Kansas Supreme Court, finally dragged into the debate five years too late, did note that the incident was “voluntary” as opposed to “consensual”: meaning, perhaps as Bob put it, consensual in nature, but lacking some capacity to offer full consent.
10.24.2005 2:07pm
Dale Gribble (mail) (www):
State v Limon, Scotus remanded to KS appellate courts, which upheld the conviction, there was no retrial, rather the KS Supreme Court, finding the statutory sex assault law severable with regard to the homo/hetero distinction, excised the "unconstitutional" language and sentenced Limon as if he had done the Juliet
10.24.2005 3:45pm
Appellate Junkie (mail):
Dale,


sentenced Limon as if he had done the Juliet


Clever turn of the phrase aside, I didn't read the decision that way.

The KS Supremes seem to have struck the offensive provision of the "Romeo &Juliet" law (which in and of itself, had nothing to do with Mr. Limon's conviction under a separate statute), as you described.

The court also vacated Mr. Limon's conviction (and of course the sentence the flowed from it), and allowed prosecutors only 30 days in which to bring charges under the now revised R&J law.
10.24.2005 4:07pm
JamesT:
Ok. I cannot find a Kansas attorney who has commented on this in the thread of comments.

Are we all just keeping our collective Kansas heads down? It would be interesting to hear from those who deal with Kansas law on a regular basis and have followed the case from in state.

(And for the record, I am a Kansas AAG, so I will not be commenting.)
10.26.2005 12:12am