Last edited: September 06, 2004

Court Weighs Harsher Sentence in Gay Underage Sex Case

The Lawrence Journal-World, September 1, 2004

By John Hanna, Associated Press Writer

Topeka—The state can punish illegal underage sex more harshly when it involves homosexual acts, even if the only goal is promoting traditional sexual roles, an official told the Kansas Supreme Court on Tuesday.

Deputy Atty. Gen. Jared Maag said legislators had such broad latitude in setting policy that “any conceivable, rational basis” would justify the different treatment.

Maag argued in favor of upholding a sentence of more than 17 years in prison for Matthew R. Limon, convicted of criminal sodomy for having sex at age 18 with a 14-year-old boy in 2000.

Had the victim been a girl, Limon could have been sentenced to one year and three months in prison under a 1999 law. His attorneys argued the different treatment represents discrimination against gays and lesbians—and is unconstitutional.

But Maag said the different treatment was acceptable if legislators could argue there’s a rational reason—protecting public health, protecting children or promoting traditional values.

“If you admit there’s a conceivable basis that’s at least arguable, then that is enough to uphold the statute as constitutional,” he said.

James Esseks, an American Civil Liberties Union attorney representing Limon, said the state had “fanciful justifications” for the harsher sentence.

Esseks said the state was basing its law on “private prejudice,” which is constitutionally unacceptable.

“Homosexuality is not a mental disorder,” he said. “There is nothing inherently harmful about it.”

After the hearing, Esseks said any reason for the different treatment must be justified with “real-world facts.”

“These connections are so tenuous as to be arbitrary and unconstitutional,” Esseks told the court.

Kansas law makes any sexual activity involving a person under 16 illegal, regardless of the context. Also, Limon had two previous, similar offenses on his record.

Limon’s attorneys note that had his victim been female, the state’s 1999 “Romeo and Juliet” law would have applied. It establishes lesser penalties for illegal sex when the partners’ ages are within four years and one partner is under 19—and specifically applies only when the partners are of the opposite sex.

The Kansas Court of Appeals rejected Limon’s appeal in 2002. Last year, the U.S. Supreme Court struck down a Texas law criminalizing gay sex and returned Limon’s case to the state courts.

But in a 2-1 decision in January, the Kansas Court of Appeals noted that the U.S. Supreme Court case involved consenting adults and sided with the state again.

Limon then appealed the Kansas Supreme Court, which could rule as early as Oct. 15.

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