ACLU Joins Fight Against City Sodomy Law
Challenge to solicitation ordinance announced at forum on Gage Park
The Topeka Capital-Journal, September 7, 1995
By Bill Blankenship,
The Capital Journal
The American Civil Liberties Union has agreed to
underwrite a court challenge to Topeka's ordinance on solicitation.
Scott Curry, a member of the Washburn Law Student Gay and Lesbian Network, made the
announcement Wednesday night at the law school at a forum titled "What's Really Going
on in Gage Park?"
Topeka police have cited dozens of men in Gage Park for allegedly violating the city
ordinance making it illegal for "any person to solicit or agree with any other person
to participate in an act of prostitution or sodomy."
Sodomy is defined in state law and city ordinance as anal or oral copulation between
people who aren't a married couple or who aren't consenting adults of the opposite sex.
"So let's see here. Who's left? Apparently the Legislature literally interpreted
homosexuality as the love which dare not speak its name," Curry said.
Therefore, Curry argued, the solicitation ordinance discriminates against homosexuals.
A man and woman could meet in Gage Park, discuss sex and agree to go elsewhere to
consummate the act. As long as an exchange of money wasn't involved, which would mean
prostitution, their agreement to consensual sex was perfectly legal.
Substitute a same sex couple in the scenario, and asking for or agreeing to sex becomes
illegal, Curry argued.
"So, every day in bars, restaurants, on the street, and, yes, even in Gage Park,
heterosexuals solicit and accept offers of solicitation from each other. The only reason
more homosexuals than heterosexuals are being cited for asking or accepting offers in Gage
Park is because they are the only ones who can be busted for it." Curry said.
This, he argued, violates the 14th Amendment to the U.S. Constitution, which guarantees
equal protection of the law for all citizens.
Curry said there is no rational reason for a law that allows heterosexuals but not
homosexuals to solicit or accept a solicitation in a public place.
"In the end, it all comes down to fear," he said. Overcoming such fear is
necessary to mount the needed legal challenge, said John Ambrosio, a Topeka lawyer
defending a man cited in Gage Park for an alleged violation of the soliciting ordinance.
"It is time to fight each and every one of these cases," Ambrosio said.
"This law is bull," he said.
Ambrosio and the other speakers drew extended applause from the crowd of about 75
people, which included anti homosexual crusader the Rev. Fred W. Phelps Sr., who watched
the proceeding while members of his Westboro Baptist Church picketed outside.
Phelps chided the law students for going to law school in the day and violating the
sodomy law at night. "You guys going to law school ought not to be breaking the
law," said Phelps, who predicted defeat of the legal challenge based on Supreme Court
cases, including a 1984 one upholding Georgia's sodomy law.
When Phelps told Ambrosio he should read a recent federal appeal late court decision on
the subject, Ambrosio countered, "Why don't you fax it to me?"
Phelps left the forum after some in the audience began directing comments at him.
"You know I'm sensitive," said Phelps, drawing laughter from the crowd.
Ambrosio predicted it would be eight months or longer before a constitutional challenge
to the soliciting ordinance would reach the Kansas Supreme Court, should his client and
other defendants lose at trial.
Co-sponsoring the forum were the Unity and Pride Alliance of Topeka and the Gay and
Lesbian Task Force of Topeka.
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