ACLU: City, state sodomy laws unfair
Assistant city attorney defends '88 state law, city's ordinance.
Capital-Journal Wednesday, September 17, 1997
By Lew Ferguson
The Associated Press
Kansas' law prohibiting same-sex sodomy between consenting adults and a Topeka city
ordinance based on that law are unconstitutional and should be struck down, an ACLU lawyer
Matthew A. Coles, staff attorney for the American Civil Liberties Union in New York,
told a three-judge panel of the Kansas Court of Appeals the law and ordinance are
discriminatory and thus violate constitutional equal protection and privacy rights of
He said just three states still have laws making it a crime for same-sex partners to
engage in acts of sodomy -- Kansas, Missouri and Arkansas. At one time every state had
such laws, but they gradually have crumbled because of the equal protection issue, Coles
Heterosexuals can engage legally in acts of sodomy under Kansas law, Coles said, but
homosexuals are criminals if they engage in the same acts.
"This case is very simple," Coles told the judges. "Can you treat two
groups of citizens differently just because you don't approve of their orientation?"
John Knoll, a Topeka assistant city attorney, defended the 1988 state law and the
city's ordinance during arguments before an appellate court panel of Chief Judge Patrick
Brazil, Judge Henry Green and assigned District Court Judge Keith Anderson of Wichita.
Knoll contended the issue wasn't one of discrimination but of a violation that would
have been prosecutable if anyone had done it: soliciting sex in a public place.
Knoll also said the state and city have a right on moral grounds to prohibit sodomy,
and the city did so in direct response to homosexual activity in Gage Park.
Under normal handling, the Court of Appeals should have a ruling in four to six weeks,
said court spokesman Ron Keefover.
The case was brought to the Court of Appeals by Max D. Movsovitz, a self-employed
Topeka artist. He was arrested in Gage Park on April 28, 1995, by undercover police
officer Todd Pfortmiller, a member of the city police department's vice unit.
Pfortmiller testified that he and Movsovitz engaged in conversation while both were
sitting in their parked cars in a parking area of Gage Park, and the discussion soon
turned from casual to sexual.
Pfortmiller said when Movsovitz said he was willing to perform oral sex on him, he
identified himself as a police officer and arrested him.
Coles said Pfortmiller steered the conversation toward sex.
Movsovitz was convicted of violating Topeka's ordinance against solicitation of sodomy
following a trial in Municipal Court. He was ordered to pay a $499 fine, placed on
probation and ordered to stay out of Gage Park.
Movsovitz appealed his conviction to Shawnee County District Court, which rejected his
motion to dismiss the case. He then took his appeal to the Kansas Court of Appeals.
He is asking the appellate court to declare the Topeka ordinance unconstitutional, but
Coles went farther in his arguments -- asking the court to declare Kansas' anti-sodomy law
"The issue is precisely: Can the state say that for an overwhelming majority this
is legal activity but for a small group it is an illegal activity? You can't have two
different sets of rules for two different groups of people," Coles said.
"It is not OK for us to say, 'It is moral for (heterosexuals) to do it and it is
immoral for (homosexuals) to do it.' "
But Knoll said the issue wasn't one of discrimination. He said solicitation of sodomy
in a public place is illegal for everyone, not just homosexuals.
"This is not about conduct," the city prosecutor said. "There is no
fundamental right to commit sodomy. Case law says cities and states can prohibit sodomy.
"We're not talking about private activity; we're talking about solicitation in a
"This is a neutral city ordinance that prohibits solicitation of sex in a public
park. There is no equality issue. It's against the law for anyone to solicit sex in a
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