Court defeats same-sex rape law

The 6-0 opinion was a victory for gay rights.
WASHINGTON POST
The Supreme Court of Kansas struck down a state law Friday that penalized same-sex statutory rapes by 18-year-olds much more harshly than heterosexual cases, ruling that the law unconstitutionally discriminated against homosexuals.
In a 6-0 opinion, the court said its decision was required by the U.S. Supreme Court's 2003 ruling in Lawrence vs. Texas, a landmark victory for gay rights that abolished all state laws criminalizing sodomy between consenting adults.
Friday's ruling was the first time after several attempts that gay rights advocates had managed to translate their Lawrence victory into a favorable ruling on another issue in the lower courts. In 2003, the Massachusetts Supreme Judicial Court established same-sex marriage, based on the state's constitution, not Lawrence.
Under the logic of the Kansas ruling, "not only this law, but a lot of other laws that treat gay people badly would fall," said James Esseks, a lawyer for the American Civil Liberties Union's Gay and Lesbian Rights Project.
Esseks acknowledged, however, that only one other state, Texas, has a statutory rape law like Kansas'. The Kansas ruling does not apply in that state, where there are no court challenges to the law pending.
Esseks argued the case on behalf of Matthew Limon, who will be released after serving five years of a 17-year-sentence under the Kansas law. His sentence would have been at most 15 months if he had been convicted of a heterosexual act.
Kansas Attorney General Phill Kline, R, said the state would probably not appeal to the U.S. Supreme Court, noting that, as a state legislator, he had voted against the disputed provision. In a prepared statement, he said "it appears the Court has limited its holding," preserving the state's option to criminalize conduct like Limon's even if the sentence must be the same.
Conservative concern
Still, at a time when the courts' role in social issues is at the heart of debate over President Bush's nomination of Harriet Miers to the Supreme Court, the ruling was likely to raise conservative concerns.
"The court acted like a legislature when it attempted to rewrite the statute," said Mathew Staver, President and General Counsel of Liberty Counsel, a conservative litigation organization that supported Kansas in the case.
Limon's case
In 2000, Limon was 18 and a student at a state residential school for youth with mental disabilities. That year, he was convicted of having oral sex with a fellow student who was one month shy of his 15th birthday.
There was no claim the sex was coerced. Kansas, like many other states, criminalizes voluntary sex between adults and minors. But in 1999 it enacted a "Romeo and Juliet" law that set a lower penalty for a statutory rape involving an 18-year-old having sex with a 14- or 15-year-old. The lighter punishment only applied to "members of the opposite sex."
Limon appealed to the U.S. Supreme Court, claiming unconstitutional discrimination. The court held the case until it had decided Lawrence, then sent the issue back to the Kansas courts with instructions to review it in light of the new precedent.
Kansas' lower appeals court once again upheld the law, finding it constitutional because it was connected to the state's interests in protecting the normal sexual development of children and preventing sexually transmitted diseases.