Sodomy Law, Man’s Conviction Upheld
Kansas
City Star, January 23, 2003
By Tony Rizzo
If Robert T. Rowe’s partner had been a woman, he still might have faced a
criminal charge.
But he was arrested in a Shawnee Mission Park bathroom with another man,
and for that he was charged with criminal sodomy.
Rowe and his attorney, Darrell Smith, challenged the fairness of the
same-sex sodomy law—one of four in the country—but the Kansas Court of
Appeals recently upheld the law and Rowe’s conviction. Smith said he and
Rowe were asking the Kansas Supreme Court to review the case.
They also are watching the U.S. Supreme Court, which will be taking up a
similar Texas law. Texas, Oklahoma, Missouri and Kansas are the four states
that outlaw same-sex sodomy.
Rowe, 55, was charged in April 2001 when a police officer found him and
another man engaging in oral sex. A Johnson County District Court judge found
Rowe guilty of the misdemeanor charge and sentenced him to 120 days in jail.
He had previously been convicted of the same crime and had received a
suspended sentence.
In his appeal, Smith argued that Rowe’s right to equal protection of the
law had been violated because of his sexual orientation.
Smith had to fight an uphill battle, because in reviewing such a claim,
appellate courts were required to presume that the law was constitutional.
"It is the court’s duty to uphold the statute under attack rather
than defeat it, and if there is any reasonable way to construe the statute as
constitutionally valid, that should be done," the court found in an
earlier ruling.
In assessing Rowe’s case, the appellate court cited the various levels of
scrutiny that the U.S. Supreme Court has established for persons making equal
protection claims.
Some factors, such as a person’s race or gender, have been afforded a
heightened level of scrutiny that sexual orientation has not, the court noted.
Those heightened levels place persons in what are called
"suspect" or "quasi-suspect" classes.
Although the Kansas Supreme Court has never addressed that issue, the
appellate court noted that "the majority of the federal courts that have
considered whether homosexuals are a suspect or a quasi-suspect class have
rejected either classification for homosexuals."
In rejecting Rowe’s appeal, the court found that he failed to show that
the criminal sodomy law was "not rationally related to a legitimate state
interest."
Johnson County authorities have cited public health concerns in periodic
sweeps of county parks when public sexual activity was occurring.
District Attorney Paul Morrison, whose office prosecuted Rowe, said people
have been arrested for heterosexual and homosexual activity in public parks.
In 1994, for instance, a man and woman were arrested and charged with lewd
and lascivious behavior after a park ranger saw them having sex on a rented
paddle boat on the lake at Shawnee Mission Park.
The appellate court did raise one issue with the Kansas sodomy law that
could affect future rulings.
Judge Jerry G. Elliott noted in a concurring opinion that if Rowe’s
gender had been raised as an issue, the court could have looked at it with
heightened scrutiny.
"To me, the gender classification issue presents more interesting and
closer questions which must await adjudication in a case where the
argument/issue is properly before the court," Elliott wrote.
- To reach Tony Rizzo, Johnson County court reporter, call (816) 234-7713
or send e-mail to trizzo@kcstar.com
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