Last edited: January 02, 2005

Appeals Court Upholds State Anti-Sodomy Law

Associated Press, April 26, 1998

By John Hanna

TOPEKAA state law that makes homosexual sex a crime is constitutional, the state Court of Appeals ruled Friday.

A three-judge appeals panel refused to overturn the municipal court misdemeanor conviction of Max Movsovitz, a Topeka artist. Movsovitz was arrested in Topeka's Gage Park in April 1995 after soliciting sex from an undercover police officer.

Movsovitz challenged the constitutionality of a Topeka ordinance and the state's anti-sodomy law, arguing they violated his rights to privacy, equal treatment under the law and freedom of expression. He and the American Civil Liberties Union claimed the law unfairly discriminates against homosexuals.

The Court of Appeals panel, in a unanimous unsigned opinion, rejected all of the arguments. Movsovitz can appeal to the Kansas Supreme Court.

"As societal values evolve, the Legislature may follow some other state legislatures and decriminalize private sexual behavior between all consenting adults," the court said. "However, these are issues that should be addressed by legislatures and not courts."

According to court records, two men approached Movsovitz while he was parked in Gage Park, the city's largest park and home of the Topeka Zoo. During a conversation, Movsovitz agreed to engage in oral sex.

The two men were undercover police officers.

Gage Park has a reputation as a place where gay men gather and solicit sex. A Topeka ordinance against soliciting sodomy is based on the state law, which defines sodomy as sex between two people of the same sex or sex with an animal.

The Court of Appeals noted that in 1986, the U.S. Supreme Court specifically refused to extend the right of privacy to homosexual conduct and strike down a Georgia law against sodomy.

And, the Kansas court said, the Kansas Constitution, unlike those of other states, does not grant greater privacy rights than the federal constitution.

As for the argument that the city ordinance and state law unfairly discriminate against homosexuals, the Court of Appeals said neither makes being a homosexual against the law.

"Rather, it prohibits the conduct of any person seeking to solicit or agree with any other person, in a public place, participation in the act of prostitution or sodomy."

The Court of Appeals also said it knows of no court ruling that expands free speech protection to "a solicitation to commit an act lawfully prohibited by statute."

The Court of Appeals noted that the law against sodomy dates back to 1855, when Kansas was organized as a territory. Then, the law prohibited a "crime against nature" and called sodomy "detestable and abominable," but since then the law has been rewritten to remove those phrases.

Participating in the Court of Appeals decision were Chief Judge J. Patrick Brazil, Judge Henry W. Green Jr. and Sedgwick County District Judge D. Keith Anderson. Anderson was assigned to the case because the appellate court's heavy caseload.

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