(compiled from ACLU press brief and The Detroit News)

On a balmy April afternoon in 1995, columnist Deb Price writes, artist Max Movsovitz decided that rather than work at home he'd drive to a popular park. Sitting in his car, he began cutting out the paper pattern for his latest design, a bird feeder.

Soon a young man in an old sedan pulled up alongside Max, introduced himself as "Kevin" and said he was a college business major on spring break. Kevin flirted for 30 minutes, then drove off.

A little later, Max was approached again, this time by a man in a car with out-of-state plates. By all accounts, the stranger steered the conversation to sex, eventually asking Max to have oral sex. "I said, 'Yeah.' And he said, 'You are under arrest,'" Max recalls.

Writing in the Detroit News, Price says that police officer Tom Pfortmiller got Max to break the Topeka, Kansas, law against publicly soliciting or agreeing to sodomy, defined there as oral or anal sex "between persons who are not members of the opposite sex."

Earlier, Officer Kip Lowe, posing as "Kevin," had failed to get Max to say anything illegal. "I wasn't having sex in the park. I wasn't soliciting," Max declares.

Still on the books in 21 states, sodomy statutes are most often used indirectly -- to stigmatize gay people as criminals to justify discrimination in, for example, custody decisions and to prop up arguments against recognition of gay civil rights. But Max's experience, Price says, reminds us that as long as these archaic laws exist, the police are free to enforce them.

Self-employed and out to both his family and his landlord, Max was not afraid to fight back. His challenge to the Topeka ordinance and the Kansas sodomy law has national significance: It could provide the U.S. Supreme Court a golden opportunity to knock down sodomy laws that target only gays. His case is before the Kansas Court of Appeals.

Max's park conversation wouldn't have broken Topeka law if he'd been speaking to a woman instead of a man. Likewise, Kansas outlaws same-sex sodomy but not male-female sodomy.

As Matt Coles, the Director of the ACLU's Lesbian and Gay Rights Project, told the appeals court, the clearly discriminatory laws violate the U.S. Constitution's guarantee of equal protection. In addition to the ACLU's brief, Karen Eager, a member of the Washburn Law School Lesbian and Gay Network, wrote an amicus brief. The Network was also instumental in coordinating briefs from the Society for the Scientific Study of Sexuality and the Inter-american Center for Human Rights.

Coles told Price that is eager to take that argument to the Supreme Court. In Bowers vs. Hardwick in 1986, the court upheld Georgia's sodomy law, which applies to all. A decade later, in Romer vs. Evans, it ruled that laws are unconstitutional if they are based on anti-gay animosity.

Coles hopes to use Max's case and the Romer decision to get the court to void gay-only sodomy laws in Kansas, Arkansas, Maryland, Missouri, Oklahoma and Texas.

Law professor Arthur Leonard, author of Sexuality and the Law, told Price that he thinks Max would have a good chance of winning if the Supreme Court took his case. A decision striking down same-sex sodomy laws would spur the 15 states with equal-opportunity sodomy laws to get rid of those as well, he predicts.

Meanwhile, Max, who at 33 calls himself a law-abiding nerd, is still shaken about his arrest. A native of Savannah, Ga., he's thrown himself into creating a popular web site, Midnightinthegarden.com, for fans of the murder mystery Midnight in the Garden of Good and Evil. Yet Max's thoughts keep straying back to that park in Topeka.

"I'm not proud that I was willing to have sex with someone I just met," he told Price. "But why is my indiscretion criminal? Straight people call it scoring."

Price concludes that any government that creates gay-only crimes is doing more than just flirting with prejudice. It is fully embracing injustice.

Source: The Detroit News, January 16, 1998