(Kansas Justice Marla Luckert should be nominated to the U.S. Supreme Court instead of Harriet Miers, IMHO)
Kansas high court rejects harsher treatment of gay sex
TOPEKA, Kan. (AP) — Kansas cannot punish illegal underage sex more severely if it involves homosexual conduct, the state's highest court ruled unanimously Friday in a case watched by national groups on both sides of the gay rights debate.
The Supreme Court said in a unanimous ruling that a law that specified such harsher treatment and led to a 17-year prison sentence for an 18-year-old defendant "suggests animus toward teenagers who engage in homosexual sex."
"Moral disapproval of a group cannot be a legitimate state interest," said Justice Marla Luckert, writing for the high court.
The defendant, Matthew R. Limon, has been behind bars since he was convicted in 2000 of performing a sex act on a 14-year-old boy. Had one of them been a girl, the state's "Romeo and Juliet" law would have dictated a maximum sentence of 15 months.
The court said Limon should be resentenced within 30 days as if the law treated illegal gay sex and illegal straight sex the same, and it struck language from the law that resulted in the different treatment.
"We are very happy that Matthew will soon be getting out of prison. We are sorry there is no way to make up for the extra four years he spent in prison simply because he is gay," said Limon's attorney James Esseks, of the American Civil Liberties Union's Gay and Lesbian Rights Project.
National health groups and the National Association of Social workers had filed legal arguments supporting Limon's position. A conservative law group, Orlando-based Liberty Counsel, helped prepare written arguments from 25 legislators in support of the law.
Limon and the other boy, identified only as M.A.R., lived at a group home for the developmentally disabled. In court, an official described M.A.R. as mildly mentally retarded and Limon as functioning at a slightly higher level but not as an 18-year-old.
Limon's attorneys described the relationship with the younger boy as consensual and suggested that they were adolescents experimenting with sex.
Attorney General Phill Kline's office has described Limon as a predator, noting that he already has two similar offenses on his criminal record. Kline contended that such a behavior pattern warranted a tough sentence and that courts should leave sentencing policy to the Legislature.
His office had no immediate comment on the ruling.
Kansas law prohibits any sexual activity involving a person under 16, regardless of the context. The 1999 "Romeo and Juliet" law specifies short prison sentences or probation for sexual activity when an offender is under 19 and the age difference between participants is less than four years — but only for opposite-sex encounters.
A lower court had said the state could justify the harsher punishment as protecting children's traditional development, fighting disease or strengthening traditional values. Friday's ruline said the Kansas law was too broad to meet those goals.
"The statute inflicts immediate, continuing and real injuries that outrun and belie any legitimate justification that may be claimed for it," Luckert wrote.