Last edited: February 14, 2005

ACLU: City, state sodomy laws unfair

Assistant city attorney defends '88 state law, city's ordinance.

The Topeka 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 argued Tuesday.

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 gays.

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 said.

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 unconstitutional.

"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 public park.

"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 public place."

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