No. 00-85898-A
________
IN THE COURT OF APPEALS OF THE
STATE OF KANSAS
________
STATE OF KANSAS
Plaintiff-Appellee
v.
MATTHEW R. LIMON
Defendant-Appellant
________
BRIEF OF APPELLANT
________
Appeal from the District Court of Miami County, Kansas
Honorable Richard M. Smith, Judge
District Court Case No. 00 CR 36
________
Daniel C. Estes #19491
Assistant Appellate Defender
Appellate Defender Office
Jayhawk Towers
700 Jackson, Suite 900
Topeka, Kansas 66603
(785) 296-5484
Attorney for the Appellant
Oral Argument: 15 minutes
Table of Contents
Nature of the Case 1
Statement of the Issues 1
Statement of the Facts 1
Arguments 4
I. The Limitation in K.S.A. 21-3522 Regarding Unlawful Voluntary
Sexual Relations Excluding its Application to Persons Based on
Sexual Orientation Violates the Broad Equal Protection Guarantees
of the Kansas Constitution and Bill of Rights 4
A. Standard of review 4
State v. Donlay, 253 Kan. 132, 853 P.2d 680 (1993) 4
State v. Scherzer, 254 Kan. 926, Syl. ¶ 6, 869 P.2d 729 (1994) 4
State v. Fritz, 261 Kan. 294, Syl. ¶ 1, 933 P.2d 126 (1997) 4
State v. Hill, 16 Kan. App.2d 280, 823 P.2d 201 (1991) 4
B. The Kansas Constitution extends greater equal protection of the law to its citizens than does the blanket provision of the Fourteenth Amendment 4
Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974) 5
Farley v. Engelken, 241 Kan. 663, 671, 740 P.2d 1058
(1987) 5, 6,9,23,26,29
Atchison St. Ry. Co. v. Missouri Pac. Ry. Co., 31 Kan.
660, 3 P. 284, 286 (1884) 5
McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961) 7
Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397
(1976) 7
Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225(1971) 7
Pickett v. Brown, 462 U.S. 1, 103 S. Ct. 2199, 76 L. Ed. 2d 372
(1983) 7
Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L Ed. 2d 600 (1969) 7
Hill v. Stone, 421 U.S. 289, 95 S. Ct. 1637, 44 L. Ed. 2d 172 (1975) 7
Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.
Ed. 2d 510 (1965) 7
Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d
1010 (1967) 7
McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283, 13 L. Ed. 2d 222 (1964) 8
Oyama v. California, 332 U.S. 633, 68 S. Ct. 269, 92 L. Ed. 249
(1948) 8
Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed.
2d 534 (1971) 8
Oyler v. Boyles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962) 8
K.S.A. 2-2457 8
Ernest v. Faler, 237 Kan. 125, 697 P.2d 870 (1985) 8
Hanson v. Krehbiel, 68 Kan. 670, 75 P. 1041 (1904) 8
Wentling v. Medical Anasthesia Servs., 237 Kan. 503, 701 P.2d
939 (1985) 8, 9
K.S.A. 60-471 8
Doran v. Priddy, 534 F. Supp. 30 (D. Kan. 1981) 9
K.S.A. 60-471 9
K.S.A. 60-3403 9
C. In its criminal code, Kansas separately criminalizes acts by homosexuals and identical acts by heterosexuals, and
punishes acts by homosexuals much more harshly 9
K.S.A. 21-3505 9, 11-12, 20
K.S.A. 21-3522 9-11, 24-25
K.S.A. 22-4901 et seq. Offender Registration in Kansas, 69 J.K.B.A. 28, 33 (June/July 2000) 10
1999 Legislature Finishes, Accomplishes Much, 68 J.K.B.A. 13, 29 (June/July 1999) 11
K.S.A. 1999 Supp. 21-4704 11
D. K.S.A. 21-3522 denies equal protection of the law to a class
of Kansans solely on the basis of sexual orientation in violation of the Bill of Rights to the Kansas Constitution 11
1. Under the Kansas Bill of Rights, homosexuals are a suspect
class requiring that any discriminatory statute be
independently reviewed under strict scrutiny with a
presumption of unconstitutionality 12
Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d
140 (1986) 13
High Tech Gays v. Defense Industr. Sec. Clearance Office,
895 F. 2d 563 (9th Cir. 1990) 13, 18, 20
Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) 13
National Gay Task Force v. Board of Education, 729 F.2d 1270
(10th Cir. 1984) 13
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) 13
Jantz v. Muci, 759 F. Supp. 1543, 1550-51 (D. Kan. 1991) 13
Watkins v. United States Army, 837 F.2d 1428, 1448 (9th Cir. 1988) 13
Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989) 13
Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L.
Ed. 2d 583(1973) 14, 15
An Argument for the Application of Equal Protection Heightened
Scrutiny to Classifications Based on Homosexuality,
57 S. Cal. L. Rev. 797, 821-22 (1984) 14
Victims ofAbuse and Discrimination: Protecting Battered
Homosexuals Under Domestic Violence Legislation
28 Hofstra L. Rev. 1095, 1129-30 (2000) 14
Romer v. Evans and Invidious Intent, 6 Wm. & Mary Bill Rts.
J. 89, 123-24 (1997) 15
City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105
S. Ct. 3249, 87 L. Ed. 2d 313 (1985) 15, 17,19
Plyler v. Doe, 457 U.S. 202, 216 n.14, 102 S. Ct. 2382, 72 L.
Ed. 2d 786 (1982) 15, 19
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,
96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) 15, 17, 19
The Constitutional Status of Sexual Orientation: Homosexuality
as a Suspect Classification, 98 Harv. L. Rev. 1285,
1301 (1985) 17
San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 93 S. Ct.
1278, 36 L. Ed. 2d 16 (1973) 17, 19
The "Evolution" of Lesbian and Gay Rights: Reconceptualizing
Homosexuality and Bowers v. Hardwick From a Sociobiological Perspective, 1996 Ann. Surv. Am. L. 105, 119 18, 21
Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) 18
A Difference in Hypothalamic Structure Between Heterosexual
and Homosexual Men, 253 SCI. 1034, 1035 (1991) 19
Sexual Orientation and the Size of the Anterior Commissure in
the Human Brain, 89 Proc. Nat'l. Acad. Sci. 7199 (1992) 19
Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d
855 (1996) 20
Powell v. State, 510 S.E.2d 18 (Ga. 1998) 21
Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992 21
Williams v. State, 1998 Extra Lexis 260 21
Gryczan v. Montana, 942 P.2d 112 (Mont. 1997) 21
People v. Onofre, 415 N.E.2d 936 (N.Y. 1980) 21
Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980) 21
Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. App. 1996) 21
Rowland v. Mad River Local School Dist., 470 U.S. 1009,105
S. Ct. 1373, 84 L. Ed. 2d 392 (1985) 22
Tanner v. Oregon Health Sciences University, 971 P.2d 435, 447
(Or. Ct. App. 1998) 23
Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d
274 (1972) 23
Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 521
(1983) 24
2. Alternatively, the many indicators of suspect classes which exist in the homosexual class and the breadth of the equal protection clause in the Kansas Bill of Rights require that homosexuals be treated as a quasi-suspect class and that
any discriminatory statute be subject to heightened
scrutiny 25
Wentling v. Medical Anesthesia Servs., 237 Kan. 503, 701 P.2d 939 (1985) 26
Compensation Schemes: A Constitutional "Quid Pro Quo" Analysis
to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143 (1981) 27
K.S.A. 21-3505 24-25,28,33
K.S.A. 21-3522 28-34
3. Homosexuals being an identifiable class of Kansans whom the criminal statutes punish more harshly than heterosexuals engaged in the same conduct, no rational basis exists for the discrimination against homosexuals codified into the
criminal code by the Kansas Legislature 29
K.S.A. 21-3500 30
E. The crime of unlawful voluntary sexual relations, without the
discriminatory language, is more specific and therefore
controls as to Mr. Limon's conduct, requiring that he may
only be convicted under K.S.A. 21-3522 and not under the
general criminal sodomy statute 32
State v. LaMunyon, 259 Kan. 54, 911 P.2d 151 (1996) 33
State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000) 33
Conclusion 34
Appendix 36
No. 00-85898-A
________
IN THE COURT OF APPEALS OF THE
STATE OF KANSAS
________
STATE OF KANSAS
Plaintiff-Appellee
v.
MATTHEW R. LIMON
Defendant-Appellant
________
BRIEF OF APPELLANT
________
Nature of the Case
Matthew R. Limon was convicted after a bench trial of criminal sodomy, a
severity level 3 person felony in violation of K.S.A. 21-3505(a)(2). He was sentenced to
the mitigated presumptive prison sentence of 206 months with 60 months postrelease
supervision based upon a finding that the crime was sexually motivated. Prior to trial the
court denied a Motion to Dismiss and Mr. Limon now appeals his conviction.
Statement of the Issues
Statement of the Facts
Matthew Limon's diagnosis placed him in the borderline range between "borderline intellectual functioning" and "mild mental retardation," meaning that he did not function at the level of a normal 18 year old. (R. VI, 5.) He had been admitted to the Lakemary Center, a residential school for developmentally disabled children. (R. VI, 4.) The center focused on serving students with developmental disabilities and psychiatric disorders or behavioral problems. (R. VI, 4.) Matthew Limon was a resident of the center from July 1999 to February 2000. (R. VI, 4.) Prior to arriving at Lakemary, Matthew had been placed in the Parkview Passages Residential Treatment Center in Topeka. (R. VI, 8.) He had also previously been treated at St. Francis in Ellsworth. (R. VI, 9.)
At the time of the allegations in this case, Matthew had just had his eighteenth birthday. (R. I, 16.) Matthew met another male student at the Lakemary Center, M.A.R., who consented to Matthew performing oral sex upon him; when M.A.R. requested that Matthew stop, he stopped the oral sexual contact with M.A.R. (R. IV, 4.) It is not clear from the record how police became involved in this case, yet upon their interview of Matthew at the school, he admitted to having consensual oral sexual contact with M.A.R. (R. II, 2.)
M.A.R. was evaluated by the Director of Children's Services for the Lakemary Center, Earl Robert Kilgore, Jr., who also evaluated Matthew, and M.A.R. was determined to function in the "upper limits of the range of mild mental retardation," which represented a slightly lower functioning than Matthew. (R. VI, 6.) M.A.R., whose birthday was March 17, 1985, was 14 years and 11 months old at the time of the incident. (R. IV, 4.) Matthew was 3 years, 1 month and a few days older than M.A.R.
Matthew was charged with Criminal Sodomy, a severity level 3 person felony. (R. I, 4.) Prior to trial, defense counsel filed a "Motion to Dismiss and Prevent Manifest Injustice," arguing that due to the inequitable and unconstitutional discrimination against a certain group of people codified into K.S.A. 21-3522 regarding Unlawful Voluntary Sexual Relations, Matthew was charged under a far more severe statute than the one which, had it been constitutionally drawn by the legislature, would have applied in Matthew's case. (R. I, 16-31.) The defense argued that excluding Matthew from prosecution under K.S.A. 21-3522 because of sexual orientation denied him the equal protection of the law under the federal and state constitutions. (R. I, 17-29.) He asserted that strict scrutiny must be given to the statute's exclusion of persons on the basis of sexual orientation. (R. I, 17-29.) Further, he argued that Matthew's actions were more specifically covered by the provisions of K.S.A. 21-3522 with the exception that his actions were homosexual, and that had the discriminatory provision excluding homosexual acts not been part of the statute, the State would have been required to charge Matthew under K.S.A. 21-3522 rather than K.S.A. 21-3505. (R. I, 16-17.)
After a hearing, the district court denied Matthew's motion and set the case for trial. (R. III, 14-20.) Matthew waived his right to a jury trial and proceeded to a bench trial upon stipulated facts that admitted the substance of the charge on criminal sodomy. (R. IV, 2-4.) Accordingly, the court found Matthew guilty. (R. IV, 5.) As a result of Matthew's previous juvenile adjudications for criminal sodomy two years earlier, he was sentenced to 206 months imprisonment. (R. I, 55-56.)
Arguments and Authorities
The trial court's interpretation of a statute is a question of law over which appellate review is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). "A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down." State v. Scherzer, 254 Kan. 926, Syl. ¶ 6, 869 P.2d 729 (1994). When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling. State v. Fritz, 261 Kan. 294, Syl. ¶ 1, 933 P.2d 126 (1997). The determination of whether a statute, other than the general statute under which the defendant was charged and convicted, more specifically applied to the defendant's conduct is a question of law over which the appellate court exercises an unlimited scope of review. State v. Hill, 16 Kan. App.2d 280, 823 P.2d 201 (1991).
The Fourteenth Amendment to the United States Constitution provides that no
state shall "deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the law." U.S.
Const. amend. XIV. Enacted to apply directly to the states, the Fourteenth Amendment
remains the minimum threshold constitutional protection extended to all persons.
Sections 1 and 2 of the Bill of Rights of the Kansas Constitution provide:
§ 1. Equal rights. All men are possessed of equal and inalienable natural
rights, among which are life, liberty, and the pursuit of happiness.
§2. Political power; privileges. All political power is inherent in the
people, and all free governments are founded on their authority, and are
instituted for their equal protection and benefit. No special privileges or
immunities shall ever be granted by the legislature, which may not be
altered, revoked or repealed by the same body; and this power shall be
exercised by no other tribunal or agency.
Often these provisions are given much the same effect as the due process and equal
protection clauses of the Fourteenth Amendment. Henry v. Bauder, 213 Kan. 751, 752-53, 518 P.2d 362 (1974). The Kansas Supreme Court, however, has recognized that the
intent of the framers of the Bill of Rights to the Kansas Constitution was to steadfastly
guarantee equal protection of and from the laws to each of Kansas' citizens beyond that
embodied in the Fourteenth Amendment.
"[T]he Kansas Constitution affords separate, adequate, and greater rights than the
federal Constitution," providing more than "glittering generalities," by limiting the power
of the legislature to act in conflict with the people and declaring void any law which
"trenches upon the rights guaranteed" by the Bill of Rights, "or which conflicts with any
limitation expressed in them." Farley v. Engelken, 241 Kan. 663, 671, 740 P.2d 1058
(1987); Atchison St. Ry. Co. v. Missouri Pac. Ry. Co., 31 Kan. 660, 3 P. 284, 286 (1884).
The plain language of Sections 1 and 2 guarantee greater rights than the federal
constitution by stating that the rights of all Kansans are equal, and that "all free
governments . . . are instituted for [the people's] equal protection and benefit." The
government does not grant its citizens equal protection, so much as the citizens form a
government for the express purpose of ensuring equal rights, protections and treatment.
Equal protection of Kansans is not a byproduct of the Bill of Rights, but a defining
purpose and fundamental tenet of the right to govern.
The traditional application of the equal protection clauses in the federal
constitution and the Kansas Bill of Rights centers on the level of scrutiny with which the
reviewing court will examine a challenged statute. The general rule presumes the statute
constitutional, placing the burden on the challenging party. Farley, 241 Kan. at 667. Only
in cases involving a suspect classification or a fundamental right is the presumption
reversed and the State burdened with demonstrating a compelling state interest justifying
the classification. Id. A reviewing court's role is limited to determining "whether the
classifications are reasonable, not arbitrary, and are justified by a legitimate state
interest." Id. at 668.
The United States Supreme Court applies three levels of scrutiny when examining
legislative action which treats differently classified citizens unequally. As the perceived
importance of the right or interest involved and the sensitivity of the classification
increases, so does the level of scrutiny. Generally applicable and least strict is the
"rational basis test," which "permits the States a wide scope of discretion in enacting laws
which affect some groups of citizens differently than others. The constitutional safeguard
is offended only if the classification rests on grounds wholly irrelevant to the achievement
of the State's objective." McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S. Ct. 1101, 6
L. Ed. 2d 393 (1961).
Specific circumstances may elevate the scrutiny applied by the U.S. Supreme
Court to an intermediate level or "heightened scrutiny" if the statute involves "quasi-suspect" classifications. If this is the case, the Court requires the statutory classification
to substantially further a legitimate legislative purpose, requiring the State to demonstrate
a direct relationship between the classification and the State's goal. Craig v. Boren, 429
U.S. 190, 197, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976). Intermediate level scrutiny
classifications, or quasi-suspect classes, include classes based on gender and illegitimacy.
Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225(1971); Craig, 429 U.S. 190;
Pickett v. Brown, 462 U.S. 1, 103 S. Ct. 2199, 76 L. Ed. 2d 372 (1983).
Classifications involving suspect classes or fundamental rights are examined
under "strict scrutiny," which shifts the presumption against the statute's constitutionality
and requires the State to demonstrate that the classification is necessary to serve a
compelling state interest. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 22 L
Ed. 2d 600 (1969). Fundamental rights recognized by the Supreme Court include voting,
privacy, marriage, and travel. Hill v. Stone, 421 U.S. 289, 95 S. Ct. 1637, 44 L. Ed. 2d
172 (1975); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510
(1965); Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967);
Shapiro, 394 U.S. 618. The suspect classes which the Court has recognized include race,
ancestry and alienage. McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283, 13 L. Ed. 2d
222 (1964); Oyama v. California, 332 U.S. 633, 68 S. Ct. 269, 92 L. Ed. 249 (1948);
Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971). Most
likely, the Supreme Court will also treat religious classifications as suspect classes and
apply strict scrutiny. Oyler v. Boyles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446
(1962).
Kansas courts have recognized that the Kansas Bill of Rights reserves greater
rights to Kansans than does the federal constitution, and appropriately, has applied a
higher level of scrutiny when those rights have been infringed on or unequally classified
by legislation. Justice Prager applied strict scrutiny to a constitutional challenge to
K.S.A. 2-2457, requiring a person damaged by pesticide application to file a written
statement with the county attorney within 60 days of discovery of the damage in order to
bring a civil action for damages. Ernest v. Faler, 237 Kan. 125, 697 P.2d 870 (1985).
Since Section 18 of the Kansas Bill of Rights was determined in 1904 to guarantee a
fundamental right to a remedy by due course of law for a personal or property injury, the
challenged statute in Ernest involved a fundamental right requiring strict scrutiny. Ernest,
237 Kan. at 129-31 (quoting Hanson v. Krehbiel, 68 Kan. 670, 75 P. 1041 (1904)).
In a controversial line of cases, the Kansas Supreme Court has repeatedly
extended the heightened scrutiny standard application beyond that of the U.S. Supreme
Court. In Wentling v. Medical Anasthesia Servs., 237 Kan. 503, 701 P.2d 939 (1985),
the Court considered the constitutionality of K.S.A. 60-471, regarding the admissibility of
collateral source reimbursement or indemnification to an injured party. Relying on the
Judge Theis' opinion in Doran v. Priddy, 534 F. Supp. 30 (D. Kan. 1981), finding K.S.A.
60-471 unconstitutional, a majority of the Supreme Court applied a level of scrutiny
higher than that applied under the rational basis test. Wentling, 237 Kan. at 516-18.
When considering the successor statute K.S.A. 60-3403, the Kansas Supreme Court again
applied heightened scrutiny, however, it did so under Sections 1 and 18 of the Kansas Bill
of Rights. In Farley, the Court determined that the Kansas Bill of Rights guarantees
greater rights than the federal constitution and that because the "right of a victim of
medical malpractice to a remedy against the person or persons who wronged him is
sufficiently threatened by 60-3403," a higher standard of scrutiny than the rational basis
test must be applied. Farley, 241 Kan. at 672. The Court found that future medical
malpractice victims as a class were relatively politically powerless, lacked group
cohesiveness and suffered from political disorganization much like other suspect or
quasi-suspect classes. Id.
In Kansas, though consensual homosexual conduct between persons age 16 and
older persists in the criminal code as a misdemeanor under K.S.A. 21-3505(a)(1), K.S.A.
21-3505(a)(2) prohibits consensual "sodomy with a child who is 14 or more years of age
but less than 16 years of age," and makes no distinction between homosexual and
heterosexual actors, treating all violators equally. Criminal sodomy under K.S.A. 21-3505(a)(2) is a severity level 3 person felony.
In 1999, the Kansas Legislature enacted K.S.A. 21-3522, entitled "Unlawful
voluntary sexual relations," also known as the "Romeo and Juliet" law. This statute
prohibits certain consensual sexual conduct with underage persons when the offender is
close in age to the victim, but punishes them less harshly than the otherwise applicable
statutes prescribe. K.S.A. 21-3522 provides:
(a) Unlawful voluntary sexual relations is engaging in voluntary:
(1) Sexual intercourse; (2) sodomy; or (3) lewd fondling or touching with
a child who is 14 years of age but less than 16 years of age and the
offender is less than 19 years of age and less than four years of age older
than the child and the child and the offender are the only parties involved
and are members of the opposite sex.
(b)(1) Unlawful voluntary sexual relations as provided in
subsection (a)(1) is a severity level 8, person felony.
(2) Unlawful voluntary sexual relations as provided in subsection
(a)(2) is a severity level 9, person felony.
(3) Unlawful voluntary sexual relations as provided in subsection
(a)(3) is a severity level 10, person felony.
This statute represents the legislature's apparent recognition that teenage indiscretions,
while criminal, do not warrant such harsh punishment and because the offender does not
pose a threat to society, should not be required to register as a sex offender. Rick Kittel,
K.S.A. 22-4901 et seq. Offender Registration in Kansas, 69 J.K.B.A. 28, 33 (June/July
2000).
Unless, of course, if the offender and the child are the same sex. In that case, even
when the sexual acts involved are identical, the gender and sexual orientation of the
participants determines the punishment, the threat posed to society and the need for the
offender to be registered as a sex offender. While the legislature may have acknowledged
that "there is a big difference between pedophiles and an 18-year-old having voluntary
sex with a 15-year-old," and that "the latter is still a crime but before this change, the
18-year-old and the pedophile both received the same sentence," the legislature, limiting
K.S.A. 21-3522 to heterosexual acts, appears to have codified the idea that if the
voluntary conduct between the 18 year old and 15 year old is homosexual, the older of the
two teenagers should still be treated as a pedophile. Ron Smith, 1999 Legislature
Finishes, Accomplishes Much, 68 J.K.B.A. 13, 29 (June/July 1999).
Compare two couples, each involving a 15 year old and a 18 year old, with both
engaging in consensual sodomy, but one couple consists of a male and a female, and the
other consists of either two males or two females. Comparing the guidelines sentences
for the same consensual sexual acts between members of the opposite sex with the
offender being punished under K.S.A. 21-3522(a)(2), to that for members of the same sex
with the offender being punished under K.S.A. 21-3505(a)(2), the difference is measured
in years of incarceration, not months. The sentencing range for the severity level 9 felony
under K.S.A. 21-3522(a)(2) spans from 5 months to an absolute maximum of 17 months,
with anyone having a criminal history score of C or lower receiving presumptive
probation. K.S.A. 1999 Supp. 21-4704. In contrast, a same-sex offender prosecuted
under K.S.A. 21-3505(a)(2) faces a sentencing range that imposes a presumptive prison
sentence spanning from 55 months to an absolute maximum of 247 months. K.S.A. 1999
Supp. 21-4704.
In Mr. Limon's case, the inequity drafted into K.S.A. 21-3522 resulted in a
disparate sentence that would only be imposed on homosexuals and not heterosexuals
engaging in the exact same conduct as that of Mr. Limon. Matthew Limon received a
sentence of 206 months imprisonment for his act of consensual sodomy with a 14 year
old male, less than 4 years younger than himself. Given Mr. Limon's criminal history, he
was eligible for a presumptive prison sentence of 206, 216 or 228 months for his
conviction under K.S.A. 21-3505(a)(2). A heterosexual engaging in precisely the same
conduct as Mr. Limon, with precisely the same criminal history would have received a
presumptive prison sentence of 13, 14 or 15 months, because the heterosexual offender
would have been prosecuted under K.S.A. 21-3522 for unlawful voluntary sexual
relations rather than criminal sodomy.
Appending the language to K.S.A. 21-3522 that limits its application to
heterosexual acts between teenagers classifies homosexual teenagers as a group less
deserving of the protection of the laws of Kansas. Applying the traditional tests for equal
protection challenges given the scope of the Kansas Bill of Rights' protections, the
statutory classification of homosexuals outside the protections given heterosexuals in the
criminal code is constitutionally repugnant.
Interpreting the federal constitution and the Fourteenth Amendment's equal
protection clause, the United States Supreme Court and various Circuit Courts of Appeal
have not recognized homosexuals as a suspect class. Interestingly, the Supreme Court
has never directly ruled on the question of whether homosexuals are a suspect class, and
if not, what level of scrutiny should apply to legislation designed to discriminate against
them. In fact, what is often cited as the seminal case in questions of the rights of
homosexuals, Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140
(1986), addressed only the question of whether a substantive due process right exists for a
person to engage in homosexual sodomy. In finding no such substantive right under the
Constitution, the Court never once considered whether statutes discriminating against
homosexuals were violative of the equal protection clause.
Unfortunately, courts have repeatedly relied on Bowers to conclude that if
homosexual conduct may be criminalized, then homosexuals as a group may be readily
discriminated against by the laws of the federal government and the many states.
Homosexuals have been denied suspect and quasi-suspect classification based upon an
opinion which committed not a single sentence to consideration of equal protection.(1) In
fact, the federal courts which have found that homosexuals are a suspect class have all
been overruled or had the opinion withdrawn by the circuit courts.(2)
This Court must consider whether homosexual Kansans constitute a suspect class
and should be extended the equal protection of the laws of Kansas which the federal
courts have failed to extend on the basis of the federal constitution. There are number of
factors to consider when determining whether a classified group is a suspect class.
First, this Court must consider whether homosexual Kansans as a group have
suffered a history of purposeful discrimination. See, e.g., Frontiero v. Richardson, 411
U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583(1973) (regarding sex/gender discrimination).
There is little question that homosexuals are the target of deep prejudice and hatred both
in Kansas and the larger American society. The stereotypes of homosexuals, both men
and women, cast them as proselytizing children to homosexuality or seeking out children
to molest, characterize them as mentally ill and describe gays as effeminate and lesbians
as masculine. Harris M. Miller II, Note, An Argument for the Application of Equal
Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 S. Cal. L.
Rev. 797, 821-22 (1984). Historically, homosexuality has been discriminated against
throughout society as the basis for denying housing, ruining careers, giving undesirable
military discharges, denying occupational licenses, the right to adopt, national security
clearances and even the right to enter the county. (3) Also, homosexuals have been victims
of violent crime at an alarming rate.(4) The FBI stated that in 1999, sexual-orientation bias
crimes accounted for 1,317 of all bias-motivated crimes, approximately 16%, including 3
murders.(5) The discrimination faced by homosexuals in our society is no less pernicious
or intense than that faced by other groups treated as suspect classes, such as racial
minorities, aliens or persons of a particular national origin.
Whether that discrimination embodies a gross unfairness that is sufficiently
inconsistent with the ideals of equal protection to term it invidious is the second factor
this Court must consider. "Gross unfairness" has come to include (1) whether the class is
defined by a trait which bears no relationship to a person's ability to perform or
contribute to society; (2) whether the class has been subjected to unique disabilities on the
basis of the stereotyped characteristics not truly indicative of their abilities; and (3)
whether the defining class trait is immutable. See Frontiero, 411 U.S. at 686; City of
Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-44, 685-87, 105 S. Ct. 3249, 87
L. Ed. 2d 313 (1985); Plyler v. Doe, 457 U.S. 202, 216 n.14, 102 S. Ct. 2382, 72 L. Ed.
2d 786 (1982); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S. Ct.
2562, 49 L. Ed. 2d 520 (1976).
Sexual orientation bears no relationship to a person's ability to perform or
contribute to society. Much like other suspect classes, the defining class trait has nothing
to do with the ability of a member of the class to perform as a productive member of
society. Just as a person's race, alien status or national origin has nothing to do with that
person's ability to function normally in society and make a positive contribution, so is a
person's sexual orientation irrelevant to that person's ability to function normally in
society and make a positive contribution, but for the widespread, deep-rooted and violent
hatred for and discrimination against homosexuals discrimination sanctioned by the
federal government and many state governments.
The irrelevance of sexual orientation to the quality of a person's contribution to
society suggests that classifications based on sexual orientation reflect prejudice and
inaccurate stereotypes. The many stereotypes of homosexuals have been uniformly
rejected as untrue and based on prejudice rather than reason. Homosexuals are not able to
recruit or induce children or any heterosexual person to convert to homosexuality. Miller,
57 S. Cal. L. Rev. at 821-22. Child molesters are more likely to be heterosexual, and
heterosexuals are more likely to respond sexually to children. Id. at 822-23. Further,
homosexuals are not more likely to be psychologically distressed, nor is homosexuality a
sign of psychopathology. Most medical and psychiatric professionals recognize that
homosexuality is not a mental illness or disease. Id. at 823-24. Instead, homosexuality is
viewed by professionals as a normal variation of human sexuality. Jablow, 28 Hofstra L.
Rev. at 1131. Despite the relatively uniform rejection of the many stereotypes,
discrimination against homosexuals under these misconceptions continues.
Immutability refers to character traits which are incidents of birth, or "unchosen
and unalterable." Note, The Constitutional Status of Sexual Orientation: Homosexuality
as a Suspect Classification, 98 Harv. L. Rev. 1285, 1301 (1985). When analyzing suspect
classification, many courts have relied on immutability of the defining trait, but it has
never been a necessary part of an equal protection analysis.(6) Moreover, it is clear that
immutability does not mean a complete inability to change the class trait. People can
change their sex, aliens can become naturalized, illegitimate children can be adopted,
even members of certain races and creeds can sometimes "pass" for being white or hide
their national origin.
Sexual orientation is an immutable trait for the purposes of equal protection. A
person no more chooses their sexual orientation than they choose the color of their skin or
place of their birth. Scientific research indicates that people have little control over their
sexual orientation, and that a person's orientation is not subject to change. See Miller, 57
S. Cal. L. Rev. at 817-821; Jablow, 28 Hofstra L. Rev. at 1131-33. In fact, homosexuality
is as deeply ingrained in a person's core identity as is heterosexuality. This Court could
ask whether heterosexuals feel capable of changing their sexual orientation, or abstaining
from its practice. Scientific research has offered evidence that sexual orientation is
controlled by genetics, and that a particular gene exists which predisposes people to
homosexuality. See Norman C. Simon, The "Evolution" of Lesbian and Gay Rights:
Reconceptualizing Homosexuality and Bowers v. Hardwick From a Sociobiological
Perspective, 1996 Ann. Surv. Am. L. 105, 116-119. Even if somehow changeable, no
request from a government could more greatly pervert the principles of equal protection
of the laws and basic human freedom than a government requirement to change a physical
or personal trait inherited by genetic fortuity or face social and legal castigation.
Twice, however, federal circuit courts have found that homosexuals are not a
suspect class because the defining characteristic was not immutable. Both courts, without
relying on a single scientific or medical authority, deemed homosexuality behavioral and
therefore, not immutable in the way that the defining traits of race, gender or alienage are
immutable. High Tech Gays, 895 F.2d at 573; Woodward v. United States, 871 F.2d
1068, 1076 (Fed. Cir. 1989). That conclusion is surprising in light of the overwhelming
scientific evidence that homosexuality is not a behavioral characteristic subject to change,
but rather a defining trait with biological roots.(7)
Homosexuals as a group satisfy all of the traditional tests for whether the
historical prejudice visited upon them embodies a gross unfairness so inconsistent with
the ideals of equal protections to term it invidious. The discrimination homosexuals
endure both from society and government is a byproduct of animosity toward a socially
reviled group.
The third factor for defining a suspect class is whether the class has traditionally
been unable to protect the rights of its members through the political process. A
heightened scrutiny serves to protect politically powerless groups and minorities against
majoritarian discrimination, because the class is unable to secure such protection through
representative government. See Cleburne, 473 U.S. at 441; Plyler, 457 U.S. at 216;
Murgia, 427 U.S. at 313; Rodriguez, 411 U.S. at 28. Previous equal protection cases
have examined whether the class was a "discrete and insular minority" to find political
underrepresentation. See Murgia, 427 U.S. at 313.
In the case of homosexuals, some have suggested that they are not a politically
powerless group. The Ninth Circuit concluded that legislation in the form of anti-discrimination laws specifically naming sexual orientation as an impermissible basis for
discriminatory action was evidence that homosexuals had political power, and therefore,
could not be a suspect class. See High Tech Gays, 895 F.2d at 574. Justice Scalia in his
dissent to Romer v. Evans, 517 U.S. 620, 644-51, 116 S. Ct. 1620, 134 L. Ed. 2d 855
(1996) (Scalia, J., dissenting), set out to demonstrate the political power of the
homosexual community.
At the time Justice Scalia was writing in Romer, exactly one half of the states had
repealed their anti-sodomy laws. Romer, 517 U.S. at 645. These are laws which
criminalize private consensual sodomy between adults of the same sex making illegal
what the Court considered the defining conduct of the class. Kansas has such a statute
codified at K.S.A. 21-3505(a)(1). Justice Scalia viewed the repeal of these statutes in 25
states as the success of the politically powerful homosexual community. Id. He
encapsulated homosexuals' political power as the confluence of their residing in
disproportionate numbers in certain communities, having high disposable incomes and
caring about homosexual-rights issues much more ardently than the public at large. Id. at
645-46. Scalia viewed the passage of ordinances including "sexual orientation" as an
impermissible grounds for discrimination in three Colorado cities as evidence of the great
political power of the homosexual community. Id. at 646. In Scalia's view, the passage
of Colorado's Amendment 2 was not evidence of homosexuals' political powerlessness,
rather, that the amendment was opposed by 46% of the voters demonstrated political
support of the homosexual agenda by 46% of the general population when homosexuals
constituted only 4% of the population. Id. at 652. Scalia failed to remind his readers
when he stated that 46% of Coloradans voted in support of homosexuals, that the
majority won. In fact, 54% of Coloradans voted to forbid to homosexuals only, specific
legal protection from the injuries caused by discrimination, and passage or enforcement
of laws designed to extend protections in private and public transactions in housing, real
estate sales, insurance, health and welfare services, private education and employment,
and petition to the government for redress.
A few isolated, piecemeal victories at the local or state level spread across the
nation over the course of the past 39 years (since the first anti-sodomy statute was
repealed) does not represent political power. It is enough that the group has been
historically excluded from the political process; absolute foreclosure from it is not
necessary. As of July 2000, sodomy laws continue in force in 18 states, 5 of those outlaw
only same-sex sodomy (including Kansas), but 25 states have repealed their anti-sodomy
laws, most doing so before Bowers, with 7 other states striking down their anti-sodomy
laws in court challenges.(8) Reform in these statutes is not proof of political power any
greater than that vested in other suspect classes. Racial classes are suspect classes, but
African-Americans are protected by three federal constitutional amendments, major Civil
Rights Acts of 1866, 1870, 1871, 1875, 1957, 1960, 1964, 1965 and 1968, as well as by
anti-discrimination laws in virtually every state, including the Kansas Act Against
Discrimination adopted in 1961 and continuously expanded over the years. The political
successes of groups in gaining legislation at the highest levels of government, across the
nation, does not prevent race from being a suspect class for equal protection purposes.
The reality is that homosexuals face severe limitations in their ability to protect
their interests by means of the political process or to gain access to the mechanisms of
political change. Justice Brennan observed that "because of the immediate and severe
opprobrium often manifested against homosexuals once so identified publicly, members
of this group are particularly powerless to pursue their rights openly in the political
arena." See Rowland v. Mad River Local School Dist., 470 U.S. 1009, 1014, 105 S. Ct.
1373, 84 L. Ed. 2d 392 (1985) (Brennan, J., dissenting from denial of certiorari). Many
homosexuals conceal their sexual orientation to escape the harsh penalties imposed by
society on persons identified as homosexual. While hiding allows a person to escape
discrimination, abuse and violence, it virtually guarantees that homosexuals as a group
are politically disadvantaged.
This prejudice compelling many homosexuals to avoid open political activity is
redirected at politicians who seek to limit the impact of anti-homosexual prejudice
through legislation. Moreover, with many homosexuals avoiding public identification
and politicians avoiding the attacks associated with embracing what might be viewed by
others as a "homosexual" political agenda, communication between the heterosexual
majority and the homosexual minority is hindered. Consequently, the homosexual
community loses the ability to effect political change. The barriers to political power are
underscored by the underrepresentation of openly homosexual members in the legislative
bodies of the federal government, the many states and Kansas.(9)
An exhaustive and careful review of each of the factors commonly examined to
define a suspect class compels a conclusion that homosexuals are indeed a suspect class.
See Tanner v. Oregon Health Sciences University, 971 P.2d 435, 447 (Or. Ct. App. 1998)
(finding homosexuals are a suspect class). Sexual orientation is not a matter of choice, it
is a central and defining aspect of the personality of every individual. Homosexuals have
historically been and continue to be subject to invidious discrimination. Id. Combined
with the lack of political power to effect legislative and social change, the Kansas courts
must extend to homosexuals the protection of strictly scrutinizing any legislative
classification discriminating on the basis of sexual orientation.
Legislation which discriminates against a suspect class is presumptively
unconstitutional and this Court may only uphold the statute if it is necessary to promote a
compelling governmental interest. Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L.
Ed. 2d 274 (1972); Farley, 241 Kan. at 667. The court must "adopt an attitude of active
and critical analysis" in reviewing the challenged statute and must firmly place the burden
of establishing the statute's constitutionality on the State. See Gumbhir v. Kansas State
Board of Pharmacy, 231 Kan. 507, 521 (1983).
No compelling interest can be offered this Court to justify the discrimination
based solely on the sexual orientation of the participants built into K.S.A. 21-3522.
Without question, the State has a compelling interest in criminalizing sodomy between
adults and children, and that crime is captured in K.S.A. 21-3505(a)(2). The State also
has a compelling interest in making sodomy a crime between teenagers less than 4 years
apart in age, albeit a crime of a much less severity than that provided for in K.S.A. 21-3505(a)(2).
What the State has no compelling interest in is punishing same-sex teenage
couples far more severely than opposite-sex teenage couples for engaging in the same
illegal conduct. Differently and more severely punishing homosexuals engaging in a
certain criminal conduct than heterosexuals for that same conduct discriminates solely on
the basis of sexual orientation. As pointed out, no compelling governmental interest is
served by such discrimination; homophobia is not a compelling governmental interest.
As such, the offending language of K.S.A. 21-3522 must be stricken from the
statute. That portion of the statute which limits its application to members of the opposite
sex discriminates against same-sex couples and subjects them to greater criminal
punishment and must be stricken as a violation of the Kansas Bill of Rights Sections 1
and 2, as depriving Kansans of equal protection. The offending language "and are
members of the opposite sex" can be redacted from the statute and the interests of the
legislature and society in passing the statute will be best served without denying any
Kansan the equal protection of the laws. K.S.A. 21-3522 would apply uniformly without
regard to sexual orientation, and would continue to outlaw consensual sexual relations
among teenagers less than 4 years apart in age where the younger is 14 to 16 years old.
Offenders not fitting under the redacted statute would continue to be punished under
K.S.A. 21-3505 if they commit sodomy, without regard to sexual orientation.
Redacting K.S.A. 21-3522 to apply to all violators regardless of sexual orientation
is the only way this Court may faithfully insure that the rights guaranteed to all Kansans
in the Bill of Rights are realized. This Court must protect all Kansans and give effect to
the criminal laws in such a way that society is protected by holding those who violate the
state's criminal laws responsible for their actions, but it must also protect all people
including those accused of crimes, from nefarious and invidious discrimination born only
of hatred and animus. Criminal defendants may only be convicted by a constitutional
process, and equally they may only be convicted under constitutional statutes not
discriminatory ones. K.S.A. 21-3522 as redacted, is a constitutional statute properly
designed to protect Kansas' children, but recognize that its offenders are not predatory
sex offenders. It must treat all Kansans and all offenders equally and fairly.
A challenged statute will be examined with an intermediate level or heightened
scrutiny if the classification targeted by the statute is a quasi-suspect class. Farley, 241
Kan. at 669. The statutory classification must "substantially further a legitimate
legislative purpose" and bear a bear a direct relationship to the state's goal. See id.
Kansas has previously deviated from those quasi-suspect classes recognized by the U.S.
Supreme Court and recognized that the Kansas Bill of Rights extends greater equal
protection rights than the federal constitution and found that another class must be subject
to heightened scrutiny. In addition to gender and legitimacy classifications, Kansas
applies heightened scrutiny to future medical malpractice victims. Id. at 672. In so
holding, the Kansas Supreme Court stated that it was interpreting the Kansas Constitution
and therefore not bound by the Supremacy Clause of the U.S. Constitution to limit
heightened scrutiny to the same classes designated as quasi-suspect by the U.S. Supreme
Court. Id. at 674.
Twice when reviewing the constitutionality of a collateral source rule statute, the
Kansas Supreme Court examined with heightened scrutiny the statutory discrimination
against future medical malpractice patients, and twice invalidated the statute. Wentling v.
Medical Anesthesia Servs., 237 Kan. 503, 701 P.2d 939 (1985); Farley, 241 Kan. 663. In
Farley, the Court's primary reason for applying a heightened level of scrutiny to the
statute was the political powerlessness of future medical malpractice victims similar to
traditional suspect and quasi-suspect classes. Farley, 241 Kan. at 672. Relying on a law
review article arguing for quasi-suspect classification, the Kansas Supreme Court
concluded that political powerlessness justified treating future medical malpractice
victims as a quasi-suspect class. Id. (citing Learner, Restrictive Medical Malpractice
Compensation Schemes: A Constitutional "Quid Pro Quo" Analysis to Safeguard
Individual Liberties, 18 Harv. J. on Legis. 143 (1981)).
On the subject of political power, the Court accepted Learner's reasoning that
"'[w]hen the legislative balancing is unduly skewed by the structural inability of the
burdened class to form active political coalitions, a court must be sensitive to its
institutional role as a counter-majoritarian monitor of legislative legitimacy.'" Id.
Without examining any other characteristic of the group for indicia as a suspect class, the
Court deemed future medical malpractice victims as a quasi-suspect class entitled to be
protected by heightened scrutiny. There was no indication that the class had suffered a
history of purposeful discrimination, or that any such discrimination was related to its
members' ability to contribute to society or was based on any stereotype or whether the
class had some immutable characteristic. Only the single factor of political
powerlessness was found to justify the group being made a quasi-suspect class.
The argument for homosexuals being treated as a suspect or quasi-suspect class
eclipses the class found to deserve heightened scrutiny in Farley. In addition to lacking
political power in Kansas and throughout the nation, homosexuals have suffered a history
of purposeful discrimination which bears no relation to their ability to contribute to
society, is founded on false stereotypes and they are defined by an immutable
characteristic. A quasi-suspect class typically shares some of the characteristics of a
suspect class, yet is not a 'discrete and insular minority.' Jablow, 28 Hofstra L. Rev. at
1127. The analysis for determining a suspect versus a quasi-suspect class is the same.
Reviewing all of the reasons and analysis of the each of the factors set out above,
this Court must conclude that homosexuals represent a quasi-suspect class. Even if this
Court were to find that homosexuals are not defined by an immutable characteristic, e.g.,
that people choose their sexual orientation, or that homosexuals possess a growing
political power and ability to effect legislative change, this Court must still conclude that
most of the factors weigh so strongly in favor of finding homosexuals represent a suspect
class, that they must at least be defined as a quasi-suspect class. This is especially true in
light of the fact that immutability is not a necessary factor, but one to be considered, and
that in Kansas, the Supreme Court has previously deemed a class quasi-suspect where the
group satisfied only the political powerlessness requirement.
Finding that discrimination based on sexual orientation implicates a quasi-suspect
class, this Court must find that the discrimination built into K.S.A. 21-3522 substantially
furthers a legitimate legislative purpose and bears a bear a direct relationship to the state's
goal in order to uphold the statute. No legitimate legislative purpose exists, and no state
goal may suffice to warrant such bare and invidious discrimination against homosexuals.
The legislative purpose of criminalizing sodomy between adults and children is
adequately accomplished by K.S.A. 21-3505(a)(2). The legislative purpose of
criminalizing consensual sodomy between an older teenagers and a younger teenager, yet
not marking the offender as a predatory sex offender, is otherwise adequately
accomplished by K.S.A. 21-3522, except that it only applies to opposite-sex couples.
Treating only the offenders of teenage same-sex couples engaging in sodomy as predatory
sex offenders is unnecessary to accomplish the State's penalogical interests. In fact, it
serves only to more harshly punish a class of offenders for a criminal act which the
legislature has determined to be less criminally culpable, less dangerous to society, less
dangerous to children, not warranting sex offender registration and deserving of less or no
incarceration.
Discriminating against a single class of citizens based on sexual orientation, and
incarcerating them for an extended period of time and requiring them to register as sex
offenders for an act which heterosexuals receive probation or comparatively short periods
of incarceration bears no relation to the state's goals. It serves only punish Kansas' young
people with a different sexual orientation; it gives effect to the political
disenfranchisement of homosexuals in Kansas and their inability to legislatively prevent
this kind of invidious discrimination, and it puts a harsh criminal sanction behind the
majority's moral opprobrium for homosexuals.
This Court must strike the discriminatory language of K.S.A. 21-3522 in order to
provide all citizens the equal protection of the laws and eliminate the irrational invidious
discrimination leveled against homosexuals through the criminal laws.
In cases which challenge the constitutionality of a statute on equal protection
grounds, the general rule presumes the statute constitutional and will strike it down only
if the classification created bears no rational relationship to some legitimate state interest.
Farley, 241 Kan. at 669. This is the rational basis test applied to most equal protection
challenges and the least stringent test. Id. Reviewing courts apply the rational basis test
when no suspect or quasi-suspect class is singled out by the challenged statute.
Even if the court finds that the class discriminated against by K.S.A. 21-3522 is
not a suspect or quasi-suspect class, the court must still find that the state has a legitimate
interest in the area and that the discriminatory classification bears a rational relationship
to that state interest. If this Court finds, despite compelling evidence, that homosexuals
do not constitute a suspect or quasi-suspect class, the obvious discrimination against them
built into K.S.A. 21-3522 by the legislature must still bear a rational relationship to some
legitimate state interest to save the statute. Such invidious discrimination bears no
rational relationship to any legitimate state interest, and no state interest which aims to
achieve such discriminatory outcomes in the criminal law can be declared legitimate.
While the courts apply a deferential standard to equal protection claims, if the
court finds that the discriminatory treatment resulting from the statute's classification
scheme is unrelated to a legitimate state interest, it will conclude that the legislation is
irrational and unconstitutional. This being the case, the exact nature of the target
legislation, or the state interest involved must be determined, along with the way the
statute's discriminatory scheme relates to that state interest.
Kansas has an interest in securing the safety of its children and young adults. That
interest has led it to adopt criminal laws to punish persons who engage in sexual conduct
with children under sixteen years of age. K.S.A. 21-3500 et seq. Part of this statutory
scheme includes a general prohibition on adults engaging in even consensual sodomy
with children under sixteen years of age. K.S.A. 21-3505(a)(2) & (3). Those subsections
make no distinctions based on the sex or sexual orientation of the participants. Kansas
has, however, demonstrated a unique set of interests regarding consensual sexual conduct
between teenagers. While still prohibiting consensual sexual conduct between a teenager
less than 19 years of age and another teenager 14 to 16 years of age, and who are less than
four years apart in age, the legislature has determined that conduct to be less criminally
culpable and deserving of less punishment. K.S.A. 21-3522.
What is questioned here is the legislature's determination that teenage opposite-sex couples engaging in behavior violative of K.S.A. 21-3522 are deemed deserving of
less punishment, or preferential treatment, than are teenage same-sex couples engaging in
the same behavior. The same-sex couples are punished under the generally applicable
criminal statutes, here the criminal sodomy statute, and treated as predatory sex offenders,
while their opposite-sex counterparts are punished much less severely.
This Court must consider whether the State has a legitimate interest in punishing
homosexual teenagers engaging in the prohibited behavior of K.S.A. 21-3522 more
severely than heterosexual teenagers engaging in the same prohibited behavior. Kansas
has no legitimate interest in incarcerating teenage homosexuals for years, but graciously
giving teenage heterosexuals probation or only months of imprisonment. Kansas has no
legitimate interest in requiring only teenage homosexual violators to register as sex
offenders, while teenage heterosexual offenders are allowed to escape such public
humiliation. Kansas has no legitimate interest in channeling the majority's animosity for
the homosexual community into criminal sanctions which apply inordinately harsh
punishments based solely on the sexual orientation of the offender.
Legislation motivated by hostility toward a single group or class of people runs
afoul of the principles of equal protection embodied in our State constitution. No
statutory scheme which aims to harm an unpopular group can be said to pursue a
legitimate state objective, and no such scheme can ever be said to bear a rational
relationship to any legitimate state objective.
The discriminatory portion of K.S.A. 21-3522, the part that relegates teenage
homosexual offenders to more harsh punishment, does not bear a rational relationship to
protecting Kansas children from criminal sexual conduct. That goal would be equally
accomplished by striking the discriminatory language ("and are members of the opposite
sex") and treating equally everyone who engages in the sexual conduct proscribed in
K.S.A. 21-3522. Criminal punishment is intended to relate to the severity of the crime,
not the majority's opinion of the offender. No legitimate state interest is furthered by
discriminating against homosexuals in the criminal law; such discrimination only serves
to undermine the legitimate state interest of guaranteeing equal protection of the laws for
all Kansans.
This Court must strike the discriminatory language of K.S.A. 21-3522 in order to
provide all citizens the equal protection of the laws and eliminate the irrational invidious
discrimination leveled against homosexuals through the criminal laws.
Kansas courts have established that "where a statute dealing generally with a
subject and a statute dealing specifically with a certain phase of the subject are
conflicting, the more specific statute generally controls unless the legislature intended
otherwise." State v. LaMunyon, 259 Kan. 54, 57-58, 911 P.2d 151 (1996); State v.
Bowie, 268 Kan. 794, 801, 999 P.2d 947 (2000).
Consensual sodomy with a person under the age of 16 but over 14 years of age is
prohibited by both K.S.A. 21-3505(a)(2), criminal sodomy, and K.S.A. 21-3522(a)(2),
unlawful voluntary sexual relations. While K.S.A. 21-3505 applies generally to all
offenders, K.S.A. 21-3522 has limited application based on the age of both participants.
K.S.A. 21-3522 still prohibits consensual sodomy, but provides special punishments for
offenders under 19 years of age who are less then four years older than their partner who
is between 14 and 16 years of age. This statute provides a lesser punishment for these
teenage offenders. All other persons engaging in consensual sodomy with someone
between 14 and 16 years of age are subject to prosecution under K.S.A. 21-3505.
The evidence in this case was that Mr. Limon, who was 18 years of age at the
time, engaged in consensual oral sex with another, M.A.R., who was 14 years and 11
months old at the time. Mr. Limon was less than four years older than M.A.R. This is
exactly the kind of conduct intended to be proscribed by K.S.A. 21-3522(a)(2). If K.S.A.
21-3522 is read without the unconstitutional language, then it specifically applies to the
facts of the present case. Redacted, the unlawful voluntary sexual relations statute applies
more specifically to the conduct in this case than does the general criminal sodomy
statute.
Convicting Mr. Limon of criminal sodomy when the appropriate crime for his
behavior was unlawful voluntary sexual relations, and the only reason the State failed to
charge Mr. Limon appropriately was the presence of constitutionally infirm language in
K.S.A. 21-3522, demonstrates that the unconstitutional language prevented Mr. Limon
from being charged under the more specific statute. The fundamental outcome of the
discrimination built into K.S.A. 21-3522 was to impose a sentence on Mr. Limon ten
times greater than would have been imposed had Mr. Limon been a female engaging in
the identical sexual conduct. Failure to charge Mr. Limon under the statute which
specifically deals with his behavior cannot be excused on the basis of a constitutionally
infirm statute, therefore, Mr. Limon's conviction must be vacated for failure to charge
him under K.S.A. 21-3522(a)(2).
Conclusion
For the foregoing reasons, the appellant respectfully requests this Court reverse
the district court and vacate Mr. Limon's conviction for the State's failure to charge the
proper offense, alternatively, Mr. Limon's conviction should be reduced to a conviction
under K.S.A. 21-3522 for unlawful voluntary sexual relations.
Respectfully submitted,
________________________
Daniel C. Estes #19491
Assistant Appellate Defender
Appellate Defender Office
700 Jackson, Suite 900
Topeka, Kansas 66603
(785) 296-5484
________________________
Jessica R. Kunen #10996
Chief Appellate Defender
Appellate Defender Office
700 Jackson, Suite 900
Topeka, Kansas 66603
(785) 296-5484
Appendix
The undersigned hereby certifies that service of the above and foregoing brief was
made by mailing five copies, postage prepaid, to David L. Miller, Miami County
Attorney, 120 South Pearl, Room 300, Paola, KS 66071; and by hand delivering one
copy to Carla J. Stovall, Attorney General, 120 SW 10th, 2nd Floor, Topeka, Kansas
66612, on the day of April, 2001.
Daniel C. Estes #19491
1. High Tech Gays v. Defense Industr. Sec. Clearance Office, 895 F. 2d 563 (9th Cir.
1990); Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987); National Gay Task Force v. Board of
Education, 729 F.2d 1270 (10th Cir. 1984); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989).
2. In Jantz v. Muci, 759 F. Supp. 1543, 1550-51 (D. Kan. 1991), the district court
expressly found that classifications based on sexual orientation were inherently suspect, but on
appeal, Jantz v. Muci, 976 F.2d 623 (10th Cir. 1992), the Circuit Court of Appeals declined to
address the district court's finding that sexual orientation discrimination is suspect, and instead
found that acting government official was shielded by qualified immunity preventing the court
from needing to reach the equal protection issue. In Watkins v. United States Army, 837 F.2d
1428, 1448 (9th Cir. 1988), the Ninth Circuit held that homosexuals constitute a suspect class
under the United States Constitution, but that opinion was later withdrawn by Watkins v. United
States Army, 875 F.2d 699 (9th Cir. 1989) (en banc).
3. See Miller, 57 S. Cal. L. Rev. at 825; Pamela M. Jablow, Note, Victims ofAbuse and
Discrimination: Protecting Battered Homosexuals Under Domestic Violence Legislation, 28
Hofstra L. Rev. 1095, 1129-30 (2000).
4. "In a survey of anti-gay violence and harassment in eight major cities, 86.2% of the gay
men and women surveyed stated that they had been attacked verbally; 44.2% reported that they
had been threatened with violence; 27.3% had had objects thrown at them; 34.9% had been
chased or followed; 13.9% had been spit at; 19.2% had been punched, hit, kicked, or beaten;
9.3% had been assaulted with a weapon; 18.5% had been the victims of property vandalism or
arson; 30.9% reported sexual harassment, many by members of their own families or by the
police. A study commissioned by the National Institute of Justice, the research arm of the U.S.
Department of Justice, found that gays 'are probably the most frequent victims [of hate violence
today].' Attacks on gays bespeak an astonishing rage, frequently involving torture and mutilation.
Homophobic murders typically involve mutilation of the victim. . . . A physician reported that
injuries suffered by the victims of homophobic violence that he had treated were so 'vicious' as
to make clear that 'the intent is to kill and maim'." Andrew Koppelman, Romer v. Evans and
Invidious Intent, 6 Wm. & Mary Bill Rts. J. 89, 123-24 (1997).
5. Hate Crime Statistics, 1999, Federal Bureau of Investigation, FBI Nation al Press Office
Press Release, February 13, 2001, available on the internet at
http://www.fbi.gov/pressm/pressrel/pressrel01/hate021301.htm.
6. See, e.g., Cleburne, 473 U.S. at 440-42, 442 n.10 (omitting immutability as a factor
when considering whether mentally retarded persons constituted a suspect class); Murgia, 427
U.S. at 313 (omitting immutability as a factor when considering whether mandatory retirement
for Massachusetts policemen over age 50 violated equal protection); San Antonio School Dist. v.
Rodriguez, 411 U.S. 1, 28, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973) (omitting immutability when
considering whether the Texas school financing system discriminated against a class of students).
7. A wealth of research supports this proposition. See Coleman, Changing Approaches to
the Treatment of Homosexuality, in Homosexuality: Social, Psychological, and Biological Issues,
81-88 (W. Paul, J. Weinrich, J. Bonsiorek & M. Hotvedt eds. 1982); A. Bell, M. Weinberg, & F.
Hammersmith, Sexual Preference--Its Development in Men and Women, 166-67, 211, 222
(1981); McConaghy, Is a Homosexual Orientation Irreversible?, 129 Brit. J. Psychiatry, 556, 563
(1976); Acosta, Etiology and Treatment of Homosexuality, 4 Arch. Sexual Behavior, 9, 23-24
(1975); C. Tripp, The Homosexual Matrix, (1975); Ross & Stalstrom, Exorcism as Psychiatric
Treatment: A Homosexual Case Study, 8 Arch. Sexual Behavior, 379 (1979); Dean Hammer &
Peter Copeland, The Science of Desire: The Search for the Gay Gene and the Biology of
Behavior (1994) announced finding "a correlation between a specific region of the X
chromosome and male homosexuality. . . . [T]he statistical significance of the results was better
than 99%, which means the possibility of obtaining our results by chance is extremely unlikely."
Mondimore F.M., A Natural History of Homosexuality. Baltimore, Md, Johns Hopkins
University Press (1996) conducted an exhaustive review of the scientific research and concluded
that there is now little doubt that sexual orientation is substantially influenced by hereditary
factors in both males and females. Simon LeVay, A Difference in Hypothalamic Structure
Between Heterosexual and Homosexual Men, 253 SCI. 1034, 1035 (1991). The LeVay study
found that INAH 3, interstitial nuclei of the anterior hypothalamus, is half as large in individuals
sexually oriented toward men (heterosexual women and homosexual men) than in individuals
sexually oriented toward women. These data support the hypothesis that INAH 3 is dimorphic
not with sex but with sexual orientation, at least in men. Laura S. Allen & Roger A. Gorski,
Sexual Orientation and the Size of the Anterior Commissure in the Human Brain, 89 Proc. Nat'l.
Acad. Sci. 7199 (1992) conducted a study which was interpreted as added proof that
homosexuality is inborn rather than a chosen behavior.
8. States repealing statutes and year: Alaska (1980), California (1976), Colorado (1972),
Connecticut (1971), Delaware (1973), District of Columbia (1993), Hawaii (1973), Illinois
(1962), Indiana (1977), Iowa (1978), Maine (1976), Nebraska (1978), Nevada (1993), New
Hampshire (1975), New Jersey (1979), New Mexico (1975), North Dakota (1973), Ohio (1974),
Oregon (1972), Rhode Island (1998), South Dakota (1977), Vermont (1977), Washington (1976),
West Virginia (1976), Wisconsin (1983), Wyoming (1977).
Anti-sodomy statute invalidated by courts: Georgia, Powell v. State, 510 S.E.2d 18 (Ga.
1998); Kentucky, Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992); Maryland, Williams
v. State, 1998 Extra Lexis 260, Circuit Court for Baltimore City (apparently upholding the
statute, but subsequently issuing an injunction against the state enforcing the statute) (appended);
Montana, Gryczan v. Montana, 942 P.2d 112 (Mont. 1997); New York, People v. Onofre, 415
N.E.2d 936 (N.Y. 1980); Pennsylvania, Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980);
Tennessee, Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. App. 1996).
States with same-sex only statutes: Arkansas (A.C.A. § 5-14-122 (1999 Supp.)), Kansas
(K.S.A. § 21-3505), Missouri (V.A.M.S. 566.090 (2000 Supp.)), Oklahoma (21 Okla. St. Ann. §
886 (2000 Supp.)), Texas (V.T.C.A. Penal Code § 21.06 (1999 Supp.)).
States with inclusive anti-sodomy statutes: Alabama, Arizona, Florida, Idaho, Louisiana,
Michigan, Massachusetts, Minnesota, Mississippi, North Carolina, Puerto Rico, South Carolina,
Utah, Virginia.
9. In the November 10, 2000, election, two openly homosexual candidates won election to
the U.S. House of Representatives, 15 openly homosexual candidates won election to a state
legislature, none are known to have been elected in Kansas. These results are according the Gay
& Lesbian Victory Fund, an organization committed to endorsing and electing openly gay and
lesbian politicians, printed in a November 10, 2000, press release also available through the
internet at http://www.victoryfund.org.