DECRIMINALIZING SAME-SEX BEHAVIOR:
Secondary ruling by the U.S. Supreme Court in Lawrence v. Texas;
Decision of the Kansas Supreme Court in State v. Limon
Quotations from the time of Lawrence v. Texas:
||Gays are "entitled to respect for their private lives. The state
cannot demean their existence or control their destiny by making their
private sexual conduct a crime." Justice Anthony M. Kennedy,
Lawrence v. Texas, 2003-JUN-26. 1
||"A conservative Supreme Court has now identified the gay rights
cause as a basic civil rights issue." Linda Greenhouse, reporter, The
New York Times. 1
On 2003-JUN-26, the U.S. Supreme Court issued a ruling
in Lawrence v. Texas, that may eventually
have as widespread impact on American culture as did the Roe v. Wade decision.
The latter ruling in 1973 granted women free access to early abortions, and
ended compulsory childbirth for pregnant women across the U.S.
The court voted 6 to 3 to
declare as unconstitutional a Texas anti-sodomy law which criminalized anal
and oral sex if performed by two same-sex persons. 2
It also declared similar laws in over a dozen states
unconstitutional. The ruling was unusual because almost all recent cases
involving religion, morality and ethics have been decided by a 5 to 4 vote. The Justices appear to have
based their decision on the concept of personal privacy and liberty from
government intervention. That was also the basis for the Roe v.
Wade decision. The court ruled that states
cannot criminalize behavior merely because it it considers it to
be immoral. Justice Sandra Day O'Connor wrote in support of the the majority
decision that the Texas law "brands
all homosexuals as criminals," and makes it more difficult for them to be
treated in the same manner as heterosexuals. 3
In a little-noticed action, the U.S. Supreme Court ordered new trial
for a Kansas gay youth, Matthew R. Limon. Some have speculated that the court did this one day after their
ruling of the Lawrence v. Texas case in order to reinforce its concept
that homosexuals and heterosexuals must be treated equally in law. This essay
deals with the State v. Limon case.
The U.S. Supreme Court ordered the Kansas Court of Appeals to rehear
its case involving two inmates at a residential school for developmentally
disabled youths. Matthew Limon was barely 18 years of age on 2000-FEB-16 when he engaged in
consensual homosexual oral sex with another male inmate, M.A.R., who was almost 15 years of
age at the time. It was Limon's third conviction for same-sex behavior. If Limon had been caught engaging in sex with a
young woman of that
age, he would have been tried under the state's "Romeo and Juliet Law."
It gives minimal sentences to cases of this type -- typically 13 to 15 months
in jail. But that law only applies to opposite-sex encounters. Limon was tried
under a different law, one that criminalized same-sex behavior between an adult
and minor. He was
found guilty in the year 2000, and given 206 months -- over 17 years in jail.
This is an increase of about 15 times! In addition, he was sentenced to 5 years
of post-release supervision and required to register as a persistent sexual
offender. Neither the supervision nor registration would have applied if the
Romeo and Juliet law had applied to all couples, not just opposite-sex couples.
had appealed his conviction to the Kansas Court of Appeals. The court
based its decision on a 1986 U.S. Supreme Court ruling in Bowers v.
Hardwick which had upheld state laws against same-gender sexual activity.
The Kansas court denied his appeal in 2002-FEB. The ruling said, in part:
States Supreme Court does not recognize homosexual behavior to be in a
protected class...Therefore, there is no denial of equal protection when
that behavior is criminalized or treated differently, at least under an
equal protection basis." 8
The court ruled that law assigning harsher punishment for same-sex couples
was justified because of the need to protect children's traditional development,
to fight disease, and to strengthen traditional cultural values. 4
Limon then appealed to the Kansas Supreme Court,
was refused. He finally filed a petition for a writ of certiorari to the
United States Supreme Court.
The Supreme Court overturned its Bowers v. Hardwick
ruling as part of the
Lawrence v. Texas decision
2003-JUN-26. They ruled that:
"The petitioners are entitled to respect for their private lives. The
State cannot demean their existence or control their destiny by making their
private sexual conduct a crime. Their right to liberty under the Due
Process Clause gives them the full right to engage in their conduct
without intervention of the government. 'It is a promise of the
Constitution that there is a realm of personal liberty which the government
may not enter.' [Citation omitted.] The Texas statute furthers no
legitimate state interest which can justify its intrusion into the personal
and private life of the individual." 8
Justice O'Connor concurred with the majority but
found that the Texas law violated the Constitution's equal protection clause.
"A law branding one class of persons as criminal based solely on the
State's moral disapproval of that class and the conduct associated with that
class runs contrary to the values of the Constitution and the Equal
Protection Clause, under any standard of review."
This opinion related to adult-adult same-sex behavior. However, one could
argue by analogy, that if such activity was to be permitted, then there should
be no difference in treatment between same-sex and opposite-sex encounters
involving an adult and child.
The next day, the Supreme Court ordered the Kansas Court of Appeals to
retry the Limon case.
Comments regarding the U.S. Supreme Court's decision:
As expected, reactions at the time varied:
James Esseks, litigation director of the American Civil
Liberties Union's Lesbian and Gay Rights Project, said:
"The Romeo and
Juliet Law, similar to the Texas law that was struck down yesterday, treats
lesbian and gay people much more harshly than it does straight people who
engage in the same behavior, and states can no longer get away with that kind
of unequal treatment...We hope that this is the first of many wrongs that
yesterday's ruling will correct." 5
||Dick Kurtenbach, executive director of the
American Civil Liberties Union of Kansas and Western Missouri,
said: "Matthew Limon is in prison now because he is gay...There is now an
opportunity to correct this massive injustice." 6
||Miami County Attorney David Miller disagreed, saying that Limon had
been prosecuted under a law that was designed to protect children. He
said: "The Supreme Court's decision had to do with consenting
adults...The victim in this case was not of age to give consent."
||State Rep. Mike O'Neal, (R-Hutchinson), chairman of the House
Judiciary Committee, said the question of sexual orientation was never
considered during debate in the state legislature on the Romeo and Juliet law. He now feels
that the law may have to be amended. "I'm fine with that," he said.
||State Senator John Vratil, (R-Leawood), felt it was too early to talk
about legislative action. He said: "I would not favor crafting a
legislative solution to an assumed problem." 6
Decision of the Kansas Court of Appeals:
A three judge panel of the Court of Appeals ruled 2 to 1 against Limon,
confirming his 17 year sentence.
Each judge filed a separate opinion:
||Judge Green, writing for the majority, said that the U.S. Supreme
Court's decision in Lawrence v. Texas "...is factually and legally
distinguishable from the present case." He noted that U.S. Supreme Court
Justice Kennedy mentioned that their case did not involve minors. Rather, it
concerned "...two adults who, with full and mutual consent from each
other, engaged in sexual practices common to a homosexual lifestyle."
Also, Limon's argument did not include a due process challenge whereas the
the higher court was largely based on that clause.|
||Judge Green identified four factors by which the state might
legitimately differentiate between same sex behavior of two adults, when compared to the
same behavior between an adult and child:|
||The latter could disturb the traditional sexual development of children....the
law "...is designed to discourage voluntary sexual behavior between
young adults and children which deviates from traditional sexual mores."
Giving a more lenient sentence to members of the opposite sex is proper
"because it is rationally related to the purpose of protecting and
preserving the traditional sexual mores of society and the historical
sexual development of children." |
||The state has a legitimate interest in protecting heterosexual
marriage because opposite-sex couples often have children and thus
replenish the population. Sexual acts between same-sex couples do not
lead to procreation.|
||A shorter sentence for opposite-sex couples may be justified so that
the young adult offender could be released earlier and be in a better
position to support his or her child.|
||"...certain health risks are more generally associated with
homosexual activity than with heterosexual activity." Thus more severe
sentencing for same-sex couples could be justified on public health
grounds. [The Kansas Supreme Court later rejected this concern, writing:|
||"There is a near-zero chance of acquiring the HIV infection
through the conduct which gave rise to this case, oral sex between
males, or through cunnilingus. And, although the statute grants a
lesser penalty for heterosexual anal sex, the risk of HIV
transmission during anal sex with an infected partner is the same
for heterosexuals and homosexuals."]
||Judge Malone also voted to uphold Limon's sentence. His main point was
"...if the only rational basis justifying the statute is the
legislature's intention to protect children from increased health risks
associated with homosexual activity until they are old enough to be more
certain of their choice, it is within the legislature's prerogative to
make that determination. This rationale, although tenuous in some
respects, provides a 'reasonably conceivable state of facts'
sufficient to justify the statutory classification."
||Judge Pierron disagreed with the majority opinion. He wrote that the
"[l]egislative disapproval of homosexuality alone is not enough to
justify any measures the legislature might choose to express its
disapproval. Under the rational basis test, there must be a showing that
the measures adopted have a rational relationship to a legitimate
He reviewed the above four points and found that none justified
discrimination on the basis of gender. He concluded:
"The purpose of the law is not to accomplish any of the stated aims
other than to punish homosexuals more severely than heterosexuals for
doing the same admittedly criminal acts."
Limon then appealed the decision to the Kansas Supreme Court.
Decision of the Kansas Supreme Court - State v. Limon:
The Kansas Supreme Court reviewed Limon's case. John Hanna of the
Associated Press described two different views of the sexual act by the
attorneys in the case.
||"Limon's attorneys described their relationship as consensual and
suggested that they were adolescents experimenting with sex."
||State Attorney General Phill "Kline's office described Limon as a
predator with two previous such offenses on his record. Kline contended that
such a behavior pattern warranted a tough sentence and that courts should
leave sentencing policy to the Legislature."
On 2005-OCT-21, the court unanimously declared that the state's "Romeo and
Juliet" law that criminalized underage same-sex behavior 7 violates:
||The equal protection provisions of the Fourteenth Amendment to the
United States Constitution and
||Section 1 of the Kansas Constitution Bill of Rights,
because it applies only to opposite-sex couples. It is therefore
unconstitutional. However, the law can remain in place by removing the phrase "and
are members of the opposite sex" from the legislation.
Following the lead of the U.S. Supreme Court's 2003 decision in Lawrence
v. Texas, they ruled that "moral disapproval" of such activity is
insufficient to justify treating same-sex and opposite-sex behavior differently.
Justice Marla Luckert prepared the decision of the court. She wrote that the law:
"suggests animus toward teenagers who engage in homosexual sex.....The
statute inflicts immediate, continuing and real injuries that outrun and
belie any legitimate justification that may be claimed for it...Moral
disapproval of a group cannot be a legitimate state interest." 4
The ruling concludes:
"We further grant Limon's requested remedy of imposing a time limit upon
further proceedings in this case and order that the State will have 30 days
in which to:
- Charge Limon under the statute without the words 'members of the
opposite' sex or
- Take other action."
The Attorney General suggested that the Kansas Supreme Court cannot rewrite
the "Romeo and Juliet" statute; it can only nullify the entire statute by
declaring it unconstitutional. The court disagreed and deleted the phrase from
the law, as it has done on several occasions in the past with other laws.
Comments regarding the Kansas Supreme Court's decision:
As before, the reactions were predictable:
||James Esseks of the American Civil Liberties Union's Lesbian and Gay
Rights Project represented Limon before the Supreme Court. He said: "We
are very happy that Matthew will soon be getting out of prison. We are sorry
there is no way to make up for the extra four years he spent in prison
simply because he is gay."
||Phill Kline, Attorney General of Kansas, issued a statement saying that
no appeal is expected.
||Matt Foreman, of the National Gay and Lesbian Task Force, said
that the Lawrence v. Texas decision in 2003 and the Kansas Supreme Court
unanimous ruling "....shore up the principle that gay people are entitled
to equal protection. But no one's quite sure how firm that foundation is."
||Mathew Staver, of the fundamentalist Christian legal defense group Liberty Counsel,
said that the law which treated same-sex and opposite-sex couples
differently was justified by the state's interest in protecting children and
families. He also believes that the court overstepped its authority in
declaring the law unconstitutional. He said: "That's a legislative function.
This is clearly a sign of an activist court system."
||Patricia Logue, of Lambda Legal, a gay-positive group, hopes that
the Kansas court decision will discourage activities in a number of states to
pass anti-gay laws. She said:
"A lot of the reasoning used here by the state comes up again and
again. What the court is saying is, 'If you've got a better reason, you
would have told us by now. The ones you've come up with are not good
enough, and they amount to not liking gay people'."
Linda Greenhouse, "Justices, 6-3, legalize gay sexual conduct in
sweeping reversal of court's '86 ruling. Cite privacy right. Texas
sodomy law held unconstitutional - Scathing dissent," The New York
Times, 2003-JUN-27, Page A1 & A19
"High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at:
Tim Harper, "Sodomy laws struck down: Highest U.S. court says
Texas statute unconstitutional. Dissenter warns of legalized marriage
for homosexuals," Toronto Star, 2003-JUN-27, Page A3.
- John Hanna, "Court rules Kan. can't single out gay
sex," Associated Press, 2005-OCT-21, at:
"Supreme Court applies sodomy ruling to case involving a gay youth,"
Advocate.com, 2003-JUN-28 to 30, at:
Tony Rizzo, "Kansas told to rethink gay
sex case," The Kansas City Star, 2003-JUN-28, at:
- The law cited is K.S.A. 2004 Supp. 21-3522.
- The text of the Kansas Supreme Court decision is at:
- A brief summary of State v. Limon is at:
Copyright © 2003 to 2005 by Ontario Consultants on Religious
Originally written: 2003-JUN-26
Latest update: 2005-OCT-22
Author: B.A. Robinson