Kansas Official Justifies Harsher Laws for Gay Sex
The
Advocate, September 2, 2004
Kansas can punish illegal underage sex more harshly when
it involves gay sex acts, even if the only goal is promoting traditional
values, a state official told the Kansas supreme court on Tuesday. In a
closely watched case, Dep. Atty. Gen. Jared Maag said legislators have such
broad latitude in setting policy that “any conceivable, rational basis”
would justify the different treatment. Maag argued in favor of upholding a
sentence of more than 17 years in prison for Matthew R. Limon, convicted of
criminal sodomy for having sex at age 18 with a 14-year-old boy in 2000. Had
the victim been a girl, Limon could have been sentenced to one year and three
months in prison under the 1999 “Romeo and Juliet” law, which gives
shorter sentences to heterosexuals if the partners’ ages are within four
years of each other and under 19.
Limon’s attorneys argued the different treatment
represents discrimination against gays and lesbians and is unconstitutional.
But Maag said the different treatment is acceptable if legislators can argue
there’s a rational reason—including promoting traditional values. “If
you admit there’s a conceivable basis that’s at least arguable, then that
is enough to uphold the statute as constitutional,” he said. James Esseks,
an American Civil Liberties Union attorney representing Limon, said the state
has “fanciful justifications” for the harsher sentence. Esseks said the
state is basing its law on “private prejudice,” which is constitutionally
unacceptable.
The Kansas court of appeals rejected Limon’s appeal in
2002. Last year the U.S. Supreme Court struck down a Texas law criminalizing
gay sex and returned Limon’s case to the state courts. But in a 2-1 decision
in January, the Kansas court of appeals noted that the U.S. Supreme Court case
involved consenting adults and sided with the state again. Limon then appealed
to the state supreme court, which could rule as early as October 15.
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