Man Fights Anti-Gay Sex Law
January 16, 1998
615 W. Lafayette, Detroit, MI 48226
By Deb Price / The Detroit News
On a balmy April afternoon in 1995, 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,' "
Police officer Todd Pfortmiller got Max to break the Topeka, Kan., 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. It was just outrageous," 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 reminds us that as long as these archaic laws exist, the police are free to
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 American Civil Liberties Union attorney Matt
Coles pointed out to the appeals court, the clearly discriminatory laws violate the U.S.
Constitution's guarantee of equal protection.
Coles 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, 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
admits. "But why is my indiscretion criminal? Straight people call it scoring."
Any government that creates gay-only crimes is doing more than just flirting with
prejudice. It is fully embracing injustice.
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