Kansas Man Tests Supreme Court's Sodomy Ruling

By Robert B. Bluey CNSNews.com Staff Writer October 27, 2003

(CNSNews.com) - The Supreme Court's decision outlawing sodomy laws will face its first constitutional test when a Kansas man asks the state appeals court to free him from a 17-year sentence for having homosexual sex with a minor.

Matthew Limon has already spent more than three years in jail for having oral sex with a 14-year-old boy in February 2000 at a school for the developmentally disabled. Limon was 18 years old and a registered sex offender at the time. The state prosecuted him under a statute criminalizing sex between an adult and a child.

The Supreme Court's June ruling in the Lawrence v. Texas case has given Limon a new avenue to appeal his 17-year sentence. The case is complex, but Limon is essentially asking the state to prosecute him under its "Romeo and Juliet" law, which only applies to heterosexuals.

The American Civil Liberties Union Lesbian and Gay Rights Project, which is serving as Limon's defense, believes the "Romeo and Juliet" law should apply to homosexuals as well as heterosexuals.

The statute criminalizes voluntary sexual relations between heterosexuals less than 19 years of age with another person between 14 and 16 years of age. Sentences typically run from 13 to 15 months, and judges can impose a lesser penalty for couples that marry.

Kansas Attorney General Phill Kline has defended Limon's prosecution. He has the support of 25 state lawmakers who filed a friend-of-the-court brief arguing that the Lawrence decision has nothing to do with pedophilia or any other laws regulating sex between adults and minors.

Limon's attorney, Tamara Lange of the ACLU, said the attorney general and state lawmakers have it wrong. She said the case presents the same equal protection question that was central to the Lawrence decision.

"Imposing criminal liability for sex between teenagers is not at issue in this case," Lange said. "The question is, Can you impose a different amount of penalty? Can you send a kid to jail for 17 years instead of 15 months just because it was with a member of the same sex instead of a member of the opposite sex?"

The Lawrence decision outlawed a Texas law criminalizing sodomy. Conservatives have harshly criticized the ruling. Last week, Supreme Court Justice Antonin Scalia scoffed at the decision in a speech before an anniversary celebration of the Intercollegiate Studies Institute.

Kline has suggested that Limon's case, taken in conjunction with the Lawrence decision, threatens family values. In September, he told Fox News commentator Bill O'Reilly that it could undo state laws on marriage and underage sex.

That concern prompted the Liberty Counsel, a Florida-based religious-liberties group, to intervene in Limon's case on behalf of the Kansas lawmakers. Mathew D. Staver, president and general counsel for the Liberty Counsel, defended the "Romeo and Juliet" law as a legitimate punishment for heterosexuals.

"You may have someone who's just above age who gets a minor pregnant, and those are people who may become married," Staver said. "You don't want to incarcerate the husband or the wife when you're trying to encourage them to get married."

State Rep. Jeff Goering (R-Wichita) is one of the 25 lawmakers who signed on to the Liberty Counsel's brief. He said the court should leave it up to the Kansas Legislature to determine appropriate criminal punishments.

"In Limon's case, you have a defendant who had twice been previously convicted of aggravated criminal sodomy, who was a registered sex offender and who was engaged in sexual relations with a 14-year-old developmentally disabled boy," Goering said. "Even if the 'Romeo and Juliet' statute applied to same-sex acts, that is not what the Legislature intended when we passed the law."

Lange, however, said that's the wrong outlook, particularly in the wake of the Lawrence decision. She said the fact that the Supreme Court remanded the case for further consideration should give Limon hope he will be released based on the time he has already served.

"It's the court's job under our Constitution to make sure that the legislature doesn't infringe on constitutional rights," Lange said. "The court's not writing the 'Romeo and Juliet' statute, they're simply structuring it by taking out one little phrase that makes that law unconstitutional as it's applied."