Sodomy Can Be Civil Disobedience
The Kansas State Collegian, October 23, 1995
Kansas State University
Editorial Page
By Kevyn Jacobs
So, the "Reverend" Fred Phelps thinks I should be arrested?
You know what?
He's right.
By all rights, I should be arrested. At least, if we lived in a culture that had
any respect for the law. But we don't. We live in a society that likes to pass puritanical
laws regarding personal morality that are rarely, if ever, enforced -- laws people like me
break with impunity, laughing in the face of a legal system that encourages disrespect for
itself.
I am a criminal, and I readily admit it.
As the "good reverend" pointed out on "A Purple Affair" last week,
same-gender sodomy is illegal in Kansas, and I have admitted -- no, make that bragged
-- in this column that I have intentionally and willfully violated KSA 21-3505 on several
occasions.
For those of you who don't know, KSA 21-3505 is the Kansas sodomy statute, which
defines sexual contact between members of the same sex a class B misdemeanor.
Contrary to what many people think, this law does not apply to opposite-sex
sexual contact. Kansas is one of the very few states that have such laws -- most states
with sodomy laws apply that law to both straight and queer sex.
What this means is a woman who performs oral sex on her boyfriend isn't breaking this
law, but if a man does the same thing, he is a criminal.
This is, of course, discrimination on the basis of gender.
Unfortunately, neither Kansas nor the United States have laws that prohibit this kind
of gender discrimination. The Equal Rights Amendment didn't pass, remember?
But more than the issue of gender discrimination, KSA 21-3505 is also a clear violation
of the 14th Amendment to the U.S. Constitution, which prohibits laws from being passed
that single out one group of people -- in this case, queers -- without applying the law to
everyone else.
It is this principle of prohibiting laws that don't apply equally that will probably be
the downfall of this hateful statute.
My rational for this conclusion is based on the precedent set by Commonwealth of
Kentucky v. Wasson in 1992. Kentucky, until that time, had a sodomy law almost
identical to Kansas, criminalizing only same-gender sexual contact. The law was
successfully challenged under the equal-protection clause, and overturned by the Kentucky
Supreme Court.
Kentucky no longer has a sodomy law because someone had the courage to stand up and
challenge it in court. There is every reason to believe that the same would happen here in
Kansas.
And I am willing to challenge Kansas' sodomy law. Hence, my "bragging" about
being a criminal -- I laugh in the face of the law and the state legislature, because I
know that this unjust law cannot be enforced.
And if some misguided prosecutor attempted to try me for my "crime", I would
fight it. And I would win.
But I really don't think that would happen, because I know what this law is really on
the books for -- not to be enforced or prosecuted, because it is clearly a vulnerable law
if challenged.
No, this law is on the books to intimidate, to send a message to queers in Kansas that
they are not wanted, and they don't deserve to be treated equally.
The law is there to justify labeling queers as criminals, and therefore unworthy of
equal treatment and respect.
So as the good "reverend" pointed out last week, I am indeed guilty of
criminal conduct. I don't want to be a criminal, but I willfully flaunt that conduct in
this column, daring the law to arrest me for it.
Call it civil disobedience.
I am practically begging to be arrested.
But somehow, I just don't think it's going to happen.
Kevyn Jacobs is a sophomore in art.
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