Calling a Friday court ruling a "victory for prejudice and fear," an attorney will appeal a decision by Kansas's second-highest court that the state can punish illegal sex with children more harshly when it involves homosexual acts. But Attorney General Phill Kline and conservative groups said the decision is a good one. Kline also suggested that the ruling could preempt future legal challenges to the state's ban on same-sex marriages.
The case of Matthew R. Limon had been closely watched by national advocacy groups ever since the U.S. Supreme Court ruled in June striking down laws criminalizing gay sex between consenting adults, including the sodomy law in Kansas. Convicted of sodomy for having sex in 2000 at age 18 with a 14-year-old boy, Limon was sentenced to more than 17 years in prison. Had Limon's partner been an underage girl, he could have been convicted of unlawful sex under the state's "Romeo and Juliet" law and sentenced to at most one year and three months in prison.
Tamara Lange, an American Civil Liberties Union attorney representing Limon, said she is likely to ask the Kansas supreme court to review the decision, though she has not ruled out asking the court of appeals to reconsider. "This decision is not a victory for morality or a victory for Kansas," she said. "It's a victory for prejudice and fear."
Kline said the decision preserves the legislature's right to set criminal sentencing policy. He reiterated his contention that Kansas laws banning same-sex marriages or sex with minors could have been undermined had the ACLU been successful in overturning Limon's sentence. Kline also noted that Limon had been convicted twice before of similar crimes. He accused the ACLU of trying to portray Limon as having "a loving teen relationship" when he was "convicted for the third time of molesting a child."
But Lange dismissed Kline's arguments as "smoke and mirrors" and said that the sex with the other boy, identified only as M.A.R., was consensual. Both Limon and the other boy lived at a group home for the developmentally disabled near Paola. "Any rational person who hears about the real facts of this case recognizes it's completely unfair for Matthew Limon to be sitting in prison for 17 years for having a consensual sexual relationship," she said. The ACLU argued that the differing sentences represented unconstitutional discrimination against gays.
The appeals court had rejected Limon's appeal in 2002, and the Kansas supreme court had refused to hear the case, which led the ACLU to ask for a U.S. Supreme Court review. In June the nation's highest court returned the case to Kansas, asking the appeals court to reconsider in light of the high court's ruling against sodomy laws.
However, the Kansas appeals panel said that the U.S. Supreme Court decision in June does not apply to sex acts involving children. 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."
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. As a Kansas house member in 1999, Kline voted against enacting the law, seeing it as too lenient. He said Friday that he still does not support it because "I believe this state needs to engage in all efforts to protect children from sexual exploitation."