Not So Swift Justice

The shameful case of Matthew Limon is drawing to a close. Earlier today the Kansas Supreme Court issued a ruling which unanimously overturned disparate sentencing for a underage gay sex conviction. (Read the opinion here.)

Newly eighteen-year-old Matt was arrested for giving a blowjob to a teenager less than four years younger than he. A Kansas "Romeo and Julliet" law would have capped the sentence at 15 months in prison -- but it applied only to straights. Instead, Limon got 17 years, followed by 60 months of supervised release and registration as a sex offender.

Now, as you might expect, the SCOTUS ruling in Lawrence v. Texas had an effect on this case. The same day the high court issued that ruling, it remanded Limon's case to the Kansas Court of Appeals for reconsideration. Astonishingly, that court distinguised Lawrence and upheld the conviction! It was this appalling decision that Kansas' supreme court overruled today. In doing so, the court blasted through all the trite excuses proffered to justify invidious discrimination against homosexuals, to wit: the protection of children, promoting marriage and procreation, and the prevention of STDs.

The court found a clear violation of the equal protection clauses of the U.S. and Kansas constitutiuons:

[By limiting itself to straight sex, the] Romeo and Juliet statute ... created a broad, overreaching, and undifferentiated status-based classification which bears no rational relationship to legitimate State interests. Paraphrasing the United States Supreme Court's decision in Romer, the statute inflicts immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it. Furthermore, the State's interests fail under the holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest.*

With intended irony or not, the opinion even cites Justice Scalia's Lawrence dissent that "If, as the [United States Supreme] Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, the statute cannot survive rational-basis review." And speaking of rationality, I've long been convinced that there was simply no way Matt Limon could remain in jail -- it's been five years now -- in the new world order post-Lawrence. I'm just shocked that justice has taken this long to get here.

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P.S. The WaPo claims this case is "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 fact, the Kansas decision actually owes more to Romer v. Evans. Justice Kennedy's majority opinion in Lawrence found sodomy laws to violate a liberty interest under substantive due process analysis. Romer -- and a similarly minded concurrence in Lawrence -- rests instead upon the Equal Protection clause. This is important because substantive due process is the wellspring of the controversial implied right to privacy and the grounding of both Griswold and -- wait for it -- Roe.

By the way, recall that Chief Justice Roberts assisted the gay plaintiffs in Romer, while the concurrence in question was written by a certain female justice who is set to retire any day now. Don't think for a minute that the SCOTUS nomination soap opera isn't relevant to these issues!