An extension of Lawrence
on Oct 22, 2005 at 7:22 pm
(This is another in a continuing series of reports on the impact on later cases of the Supreme Court’s 6-3 decision in June 2003 in Lawrence v. Texas, creating new rights to sexual privacy for homosexuals.)
The Kansas Supreme Court has taken the Supreme Court’s expansion of gay rights in one field of constitutional law — privacy — and applied it to another — equality. It thus suggests added arguments for greater protection against discrimination against homosexuals. The state court’s unanimous decision Friday in Kansas v. Limon (docket 85,898) can be found here.
While the Supreme Court was weighing the Lawrence case two years ago, it had pending on its docket an appeal by Matthew R. Limon, a Kansas teenager convicted of statutory sexual conduct (oral sex) with a younger boy. Limon received a prison sentence of 206 months — 17 years and two months — because the offense involved same-sex participants. Had Limon committed the same crime with a girl younger than him, he could have been sentenced at most to 15 months in prison. After the Supreme Court issued its Lawrence ruling, it sent Limon’s case back to Kansas courts to weigh that new ruling’s effect. The case was returned even though Lawrence was based on privacy principles under the Due Process clause, while Limon’s appeal was based on an equality argument under the Equal Protection clause.
The Kansas court, in a ruling written by Justice Maria J. Luckert (on that court since January 2003), found the differing punishment based on homosexuality invalid under the similar equal protection guarantees of the U.S. Constitution and the Kansas Constitution’s Bill of Rights.
Justice Luckert’s opinion reads the Lawrence opinion as something more than a a privacy rights ruling.
Luckert conceded that the Supreme Court had not decided Lawrence on equal protection grounds, but noted that the majority had cited with approval and discussed the equality analysis in another gay rights case (Romer v. Evans, 1996, involving differing treatment of homosexuals in seeking protective legislation in Colorado). In addition, the Kansas court noted, Lawrence appears to have been based upon a “rational basis” analysis (even though the Supreme Court did not say so explicitly), and that is a familiar approach in equal protection cases.
“In essence,” according to the state tribunal, “the Lawrence decision recognized that the substantive due process analysis at issue in that case and the equal protection analysis necessary in this case are inevitably linked….We are directed in our equal protection analysis by the United States Supreme Court’s holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest.”
Citing a series of Supreme Court equality rulings, the Kansas court then applied rational basis to “the harshly disparate sentencing treatment of those 18 years old and younger who engage in voluntary sex with an underage teenager of the same sex.” (Limon was 18 at the time of the offense, and the younger boy was just short of his 15th birthday.)
After examining the history of passage of the 1999 Kansas law that includes the differing punishment of homosexuals, the state court found no evidence of any legislative purpose behind that clause. Going beyond that question, the state court rejected all of the claims the state made to try to justify that difference.
In the course of doing so, the court borrowed from the Supreme Court’s privacy notion that a state may not intrude upon consensual homosexual acts between adults in private if it does so to try to promote its view that homosexuality is immoral. “The Lawrence decision,” the state tribunal said, “rejected a morality-based rationale as a legitimate state interest.”
The state court felt bound by that decision, it said, in rejecting a morality-based claim in the context of a state law seeking to protect minors. (The Lawrence case involved adults, not minors, and the Supreme Court said it explicitly was not ruling on any issues involving minors.)
It went on to strike out of the Kansas law the part that treats homosexuals more severely, leaving the statutory sexual conduct law intact on the assumption that convictions would lead to sentences without regard to the gender of the individuals involved.
Although the specific outcome, invalidating the harsher sentencing mandate, would not have widespread effect because the Kansas law’s same-sex punishment clause is novel, the linkage between privacy and equality analysis appears to bolster discrimination claims made by gays and lesbians even without putting homosexuals on the same level of constitutional protection as is enjoyed by minorities or women. It thus gets around the obstacle of gaining “suspect classification” (in constitutional equality terms) for hoomosexuals.
It appears that the Kansas court’s interpretation of Lawrence will not be tested in the Supreme Court, at least not in this case. The state’s attorney general, Phill Kline, said in a statement on Friday that “a preliminary review [of the ruling] indicates that a petition for certiorari to the United States Supreme Court will not be filed.”
No doubt, though, the interpretation is likely to arise in other courts, and thus may ultimately reach the Justices. It might have application, for example, in challenges to the military’s differing treatment of homosexuals, both in membership in the services and in punishment of servicemen for homosexual sex acts.
