Kansas can punish illegal sex with children more harshly when it involves homosexual acts, the state Court of Appeals ruled Friday in a case being watched by national advocacy groups.
Judge Henry W. Green Jr. wrote in the 2-1 decision that legislators could justify differing penalties for heterosexual and homosexual sodomy in many ways, including higher health risks or an attempt to “encourage and preserve the traditional sexual mores of society.”
The ruling rejected an appeal by Matthew R. Limon, who was sentenced to more than 17 years in prison for having sex with a 14-year-old boy in 2000. Limon was 18 at the time.
Limon and the boy, identified in court only as M.A.R., lived at a group home for the developmentally disabled.
Had Limon’s partner been an underage girl, he could have been sentenced at most to one year and three months in prison under the state’s “Romeo and Juliet” law.
The American Civil Liberties Union, which represented Limon, had argued that the differing sentences represented unconstitutional discrimination against gays, especially because the U.S. Supreme Court in June struck down state laws, including one in Kansas, criminalizing gay sex between consulting adults.
The appeals panel said Friday that decision did not apply to sex acts involving children.
Law compared to alcohol statutes
The panel said lawmakers could have several reasons for setting up differing sodomy penalties, just as they can justify making it illegal to furnish alcohol to children but not to adults.
“The Legislature could have reasonably determined that to prevent the gradual deterioration of the sexual morality approved by a majority of Kansans, it would encourage and preserve the traditional sexual mores of society,” Green wrote.
In addition, he said, “Medical literature is replete with articles suggesting that certain health risks are more generally associated with homosexual activity than heterosexual activity.”
The dissenting judge, G. Joseph Pierron Jr., said the state had no rational basis for the differences in sentencing.
“We grant deference, not blind acquiescence, to legislative findings,” Pierron wrote. “This blatantly discriminatory sentencing provision does not live up to American standards of equal justice.”
‘Romeo and Juliet’ law allowed lesser penalties
Kansas law makes any sexual activity involving a person under 16 illegal. The 1999 “Romeo and Juliet” law, however, provides lesser penalties for consensual sex when one partner is 19 or under and the other partner’s age is within four years.
Attorney General Phill Kline, who had suggested that a ruling favoring Limon could strengthen a future attack on the state’s ban on same-sex marriage, called Friday’s ruling a big victory.
Susan Sommer, an attorney for the gay rights group Lambda Legal who was involved in the case that led to June’s Supreme Court ruling, said the Kansas court was “deaf to the spirit and teaching” of that ruling.
“This is an opinion that reflects an archaic set of attitudes about homosexuality that the U.S. Supreme Court completely transcended,” she said.