Equal Rights or Judicial Activism?

October 22, 2005 8:52 AM

Kansas Supreme Court ruled on Friday that homosexuals cannot be treated differently. In what conservative homophobes decry as another instance of judicual activism, the Kansas Supreme Court unanimously struck down a state law that punished underage sex more severely if it involved homosexual acts, saying "moral disapproval" of such conduct is not enough to justify the different treatment. In the decision the court ruled: 1. K.S.A. 2004 Supp. 21-3522 violates the equal protection provisions of the Fourteenth Amendment to the United States Constitution and § 1 of the Kansas Constitution Bill of Rights. 2. The equal protection violation inherent in K.S.A. 2004 Supp. 21-3522 is cured by the severance of the words "and are members of the opposite sex" from the statute.
posted by three blind mice (66 comments total)

Bravo.
posted by papakwanz at 9:02 AM on October 22, 2005

14th amendment... good to see it being used for good, rather then strengthening corporations. It was created after the civil war for the protection of newly freed slaves, but was used predominantly as a means for corporations to achieved personhood status. Now this.

Makes me smile, good Saturday news.
posted by edgeways at 9:03 AM on October 22, 2005

Bravo indeed.
posted by mathowie at 9:03 AM on October 22, 2005

Wait, does this mean I have to stop making jokes about Kansas?

Yup, good news. I smiled too.
posted by selfmedicating at 9:04 AM on October 22, 2005

As a native Kansan... thank god, they finally did something right!
posted by cusack at 9:06 AM on October 22, 2005

It's that pesky 14th Amendment again.
posted by my sock puppet account at 9:09 AM on October 22, 2005

If only we could just pack them all onto boats and dump them in the middle of the Atlantic or something. Life would be so much easier :(
posted by alexst at 9:28 AM on October 22, 2005

Who, alexst, are you dumping into the Atlantic? Kansans or just their Supreme Court?
posted by leftcoastbob at 9:31 AM on October 22, 2005

As the descendant of Kansans, who someday wants to return, this is heartening. (The ruling, not alexst's odd statement)
posted by mmahaffie at 9:33 AM on October 22, 2005

Wait, does this mean I have to stop making jokes about Kansas?

I'd hold your horses selfmedicating.

From the first link,

The case involved an 18-year-old man, Matthew R. Limon, who was found guilty in 2000 of performing a sex act on a 14-year-old boy and was sentenced to 17 years in prison. Had one of them been a girl, state law would have dictated a maximum sentence of 15 months.

The sentence was 17 YEARS in prison compared to 15 months. Limon spent four years behind bars. Clearly the Kansas legislature and the population that put them in office still deserve all the ridicule you can heap on them.
posted by three blind mice at 9:35 AM on October 22, 2005

Can't be treated differently?

That just means you're not tryin' hard'nuff.
posted by Mikey-San at 9:38 AM on October 22, 2005

What are the implications for their state anti-gay constitutional amendment?
posted by amberglow at 9:43 AM on October 22, 2005

Bottom line: I think statutory rape is a huge grey area and most legal precedent seems to support that. Limon was charged by the District Attorney under statutory rape and molestation as it's traditionally understood doesn't seem to play into this. That it was more prison time because one dude put his willy in another dude's crap hole is inane.

I am, however, given pause by the mention of two previous offences, whatever those may be. They are not described in this article and I can find no other mention of them anywhere on the net. It would certainly give me a better picture of what kind of person he is. However, I suspect it's more teenage sex and not coërced sex or rape.

That the two individuals in this case are developmentally disabled also adds some interesting aspects to this area of jurisprudence. How do you adjudicate such a case? Where do you draw the individuals' understanding of the actions they take in conjunction with the actions themselves? What kind of disability do they have? Autism? Emotional problems? We really don't know. I'm not familiar with cases like that.
posted by Captaintripps at 9:59 AM on October 22, 2005

The implications of this ruling, especially in a state like Kansas, could be enormous. This could pave the way for more sweeping changes in the way the state law treats gay people. Finding this law unconstitutional and condemning law based on "moral disapproval" might just be precedent for overturning things like Kansas' gay marriage amendment. On the other hand, Kansas is and has been for some time a very conservative state. Those sorts of changes are unlikely at best when you consider Kansas' political environment.
posted by poorlydrawnplato at 10:05 AM on October 22, 2005

"Limon and the other boy, identified only as M.A.R., lived at a group home for the developmentally disabled. Limon's attorneys described their relationship as consensual and suggested that they were adolescents experimenting with sex.

Kline's office described Limon as a predator with two previous such offenses on his record. Kline contended that such a behavior pattern warranted a tough sentence and that courts should leave sentencing policy to the Legislature."
posted by ericb at 10:05 AM on October 22, 2005

"his willy in another dude's crap hole"

Nice wording, by the way
posted by poorlydrawnplato at 10:06 AM on October 22, 2005

I'm glad for this, but with trepidation.

On the one hand I'm thinking "good" and on the other I'm thinking "Oh boy - more read meat material for the religious right".

On the upside, it will be fun when the data start to come in after this ruling has been in force for a year and there isn't any negative social impact whatsoever.

That, I'll relish.

Until that happy day - when we have data in hand to rebut Christian right claims - get ready for endless gassy fussilades of "teh gays are taking over the world !"
posted by troutfishing at 10:07 AM on October 22, 2005

it will be fun when the data start to come in after this ruling has been in force for a year and there isn't any negative social impact whatsoever

Except that some people view any increased acceptance of homosexuality to be a "negative social impact".
posted by biscotti at 10:13 AM on October 22, 2005

Kline is such a fucking douchebag.
posted by hototogisu at 10:14 AM on October 22, 2005

Kansas Supreme Court ruled on Friday that homosexuals cannot be treated differently.

I've just read through the ruling and I don't think it did. It ruled that in this case there was no good reason to be treating homosexuals differently.
posted by cillit bang at 10:21 AM on October 22, 2005

finally some sanity.
posted by shmegegge at 10:37 AM on October 22, 2005

"Oh boy - more read meat material for the religious right".

What does it matter that it's more material for the religious extremists? If they can't have a legitimate ruling to get angry about, they'll just make some shit up to be pissed. Despite having control of the entire federal government, they're being persecuted in this country, don't you know.
posted by my sock puppet account at 10:41 AM on October 22, 2005

Sigh. If no one else is going to do it, it might as well be me.

Metafilter: His willy in another dude's crap hole.
posted by John of Michigan at 10:47 AM on October 22, 2005

It's more likely that it was a dick-sucking, not an ass-fucking. I mean it could be the latter, no doubt of it. But it's silly to have that as the default assumption. [cue Beavis: "he said 'ass'umption!"]
posted by five fresh fish at 11:30 AM on October 22, 2005

John of Michigan: "Sigh. If no one else is going to do it, it might as well be me.

Metafilter: His willy in another dude's crap hole."

That's a tagline I'm pretty sure we could have done without.
posted by mystyk at 11:31 AM on October 22, 2005

Holy shit, I knew gays in the nebluous area in which high school seniors can't legally fuck sophomores. I had no idea they'd go to jail for so long, well I guess not anymore.
posted by geoff. at 11:39 AM on October 22, 2005

Man, don't those hayseeds know that when you tell kids not to do something, that just increases their interest? Court rulings aside, Kanas is going totally gay, starting with their children.
posted by fleener at 11:40 AM on October 22, 2005

What's the matter with Kansas? Yay, Kansas Supreme Court!
posted by caddis at 12:00 PM on October 22, 2005

thank god

Why? Because just this time around he wasn't an asshole? No way. Fuck god.
posted by srboisvert at 12:11 PM on October 22, 2005

An article with some more history on the case. Predates Lawrence.
posted by Captaintripps at 12:24 PM on October 22, 2005

Man, don't those hayseeds know that when you tell kids not to do something, that just increases their interest? Court rulings aside, Kanas is going totally gay, starting with their children.

Bad news for Fred Phelps and his hate group called his family!
posted by daninnj at 12:26 PM on October 22, 2005

five fresh fish: I've always operated under the assumption that it's the anal sex which really disturbs the prudes. You know, deep down.
posted by Captaintripps at 12:26 PM on October 22, 2005

"Except that some people view any increased acceptance of homosexuality to be a "negative social impact"

biscotti, You are of course right on that - but there are still a lot of Americans who are living in a fact based reality ( facts as determined by peer-reviewed science, that is ) and would be very interested to know that there no evidence correlating either acceptance of or prevalence of gays with increased rates of societal pathology - unless one defines lifestyle behavior as pathological. I don't. But in terms of increased rates of crime, murder, etc. - hard core indices which are easy to measure, no. There's just no good evidence.

"If they can't have a legitimate ruling to get angry about, they'll just make some shit up to be pissed." ( my sock puppet account ) - Sure, but no one has yet called them on such lies, and on the lack of empirical data for their case, in a sustained way.
____________

I live in Mass., and is the Mass. family disintegrating 1 1/2 years or so after the legalization of gay marriage ? Not at all. The trends are running in the opposite direction
posted by troutfishing at 12:27 PM on October 22, 2005

I trust and expect that Kansas school boards will now pass a ruling that homosexuality must be taught alongside heterosexuality so that kids see both sides and can make an informed choice.
posted by Decani at 12:30 PM on October 22, 2005

now, as I understand it (if our conservative spokespeople are to be trusted), this means that soon it will be illegal NOT to be gay, right? And that anyone who acts like they like women will be jailed and called a bigot?

'cause that's what I'm hopin' for.
posted by shmegegge at 12:44 PM on October 22, 2005

....struck down a state law that punished underage sex more severely if it involved homosexual acts, saying "moral disapproval" of such conduct is not enough to justify....

So perhaps the relinquishment of a States ability to draw the line of "moral disapproval" of the act of murder would mean its okee dokee to off your neighbor if you find them to be irritating?
It seems that most of the basic laws we live under come from the perspective of "moral disapproval".
The little ones, murder, rape, burglary, child abuse, animal welfare laws, and the "should be a law" against the Jerry Springer Show" variety.
If the concept of there being a greater punishment exacted by society against an act which a preponderance of 'The People' find morally more repugnant makes that act discrimanatory, how does the idea of equal justice under law allow the treatment of Hate Crimes as desirable of more prison time, or a greater likelyhood of capital punishment.
The issue doesn't appear to be one wherein the KSC decided it was not OK to punish more harshly due to "moral disapproval" so much as a case of deciding it's not OK to penalize a very vocal group for being biologically conflicted.
Or the KSC would have struck down all prison sentences for which a "moral disapproval" stance had decreed a longer sentence(which I believe would not have been possible (or at least have made some mention in the writing.) - if there is a lawyer out there with that perspective I'd like to hear it.
posted by garficher at 1:05 PM on October 22, 2005

That's a fine lookin' straw man you're burnin' over there, garfincher.
posted by ROU_Xenophobe at 1:17 PM on October 22, 2005

Good call, ROU.
garficher, you need to remember that moral disapproval and societally dangerous are not the same, but happen to run along equivalent lines on most occasions. Your murder example is a perfect fit for being a part of both lists. Members of the Religious Right™ believe that homosexuality (in both thought and deed) fits both categories, when all known evidence points to it only being in the moral disapproval category. In some areas, it doesn't even fit that.
posted by mystyk at 1:27 PM on October 22, 2005

The first couple sentences of garficher's screed are nonsensical, but I wonder about the Hate Crime laws? I'm not exactly sure how the Hate Crime laws are implemented, but it seems odd to me that a murder motivated by racism is worse than a murder motivated by greed. In the same vein, it would seem odd to me that a sex crime committed by a male against an underage male is worse than a sex crime committed by a male against an underage female.
posted by mullacc at 1:30 PM on October 22, 2005

If its the "biologically conflicted" statement to which you refer; There are no societal models of historical importance which were predominantly homosexual. There were subgroups within past cultures, Hellenistic, Roman and primitive etc.. which were considered to be on equal footing with the predominant culture, but they were never a large portion of the culture, and the cultures which embraced the concept of equality for non reproductive groups as co-equals are now largely defined as "gone".
I also realize the geograhical imperative to expand had a role in the need to reproduce for most cultures, and that geographical imperative can at times now be detrimental to a countires welfare (re; Iraq's entry in to Kuwait). But the dynamics of a culture (separate from a specific country) still requires the replacement of the aging population.
posted by garficher at 1:44 PM on October 22, 2005

I dunno, it's hard to read anything in this story as actually positive for gay tolerance.

The central character is hardly someone to be identified with. He's a criminal, a mentally challenged, three-time sex offender. Who exactly is going to want this guy representing their team, NAMBLA?

For many, the situation would do nothing but reinforce the connection many make between homosexuality, crime, mental illness, and pedophilia.

It occurs to no one that the judiciary could simply react but by increasing sentences for underage hetero crimes to match more closely what they're currently doing with homo? Why assume over time this necessarily means a more liberal social climate. Could easily work out the other way with society getting tougher on all sexual criminality, no?
posted by scheptech at 1:51 PM on October 22, 2005

the cultures which embraced the concept of equality for non reproductive groups as co-equals are now largely defined as "gone"

I dunno, I think even the US is okay with equality for post-menapausal women.
posted by Hildegarde at 1:54 PM on October 22, 2005

If its the "biologically conflicted" statement to which you refer; There are no societal models of historical importance which were predominantly homosexual. There were subgroups within past cultures, Hellenistic, Roman and primitive etc.. which were considered to be on equal footing with the predominant culture, but they were never a large portion of the culture, and the cultures which embraced the concept of equality for non reproductive groups as co-equals are now largely defined as "gone".
I also realize the geograhical imperative to expand had a role in the need to reproduce for most cultures, and that geographical imperative can at times now be detrimental to a countires welfare (re; Iraq's entry in to Kuwait). But the dynamics of a culture (separate from a specific country) still requires the replacement of the aging population.
posted by garficher at 1:44 PM PST on October 22

what
posted by Optimus Chyme at 1:58 PM on October 22, 2005

I concede the difference between 'moral disapproval and societally dangerous'.
The issue though for me, is more a point of view which tells me to not distinguish between the reasons for the crime. (I'm not hearing voices !!)
Wheter its the concept of sin, none of which is greater than another, or the concept of murder because of a racial hatred or just because I wanted his Nike shoes, murder is still murder
When we start digging into why someone did a crime, in this case a statutory rape, we place ourselves in the position of trying to discern what they were thinking at the time.
Which in the end leads to a Thought Police mentality for meteing out justice. That would be OK if it was 100% correct 100% of the time. But its not and cannot be.
posted by garficher at 2:01 PM on October 22, 2005

Hildegard: Don't we still just set them on an icefloe and let them drift off?
posted by garficher at 2:04 PM on October 22, 2005

[...] past cultures [...] are now largely defined as "gone"

No shit.
posted by cillit bang at 2:10 PM on October 22, 2005

Nah, there's not enough room for them what with all the sterile men out there. We'll have to wait for more global warming to break off more pieces of Antarctica before we get to the wimminfolk.
posted by WolfDaddy at 2:13 PM on October 22, 2005

by global warming I presume you mean one of the cycles of the center of the solar system? or can I just light another can of sterno?
posted by garficher at 2:16 PM on October 22, 2005

...are you drinking it?
posted by WolfDaddy at 2:32 PM on October 22, 2005

only after I light it. thats how I trim my mustachio
posted by garficher at 2:37 PM on October 22, 2005

If I net out what I think garficher is saying it's that moral judgment is used to determine appropriate sentencing in other areas and so there's simply a logical conflict within the judement as written.

Looked at logically and legalistically, how is it possible to eliminate the moral judgement factor from just one small area of sentencing practice? Most would agree imposing a harsher sentence on someone who kills merely because they don't like their victim's skin color or sexual orientation than on someone who kills in defense of something such as their property or another person consists of nothing more or less than moral judgement, and is entirely appropriate in this sort of case.
posted by scheptech at 2:46 PM on October 22, 2005

The central character is hardly someone to be identified with. He's a criminal, a mentally challenged, three-time sex offender. Who exactly is going to want this guy representing their team, NAMBLA? -- scheptech

"The central character," Matthew Limon, had recently turned 18 at the time of his conviction. He had been attending a boarding school for the developmentally disabled, where he began a consensual sexual relationship with a younger man. His two prior convictions were for "criminal sodomy," perfectly consensual sex acts that are now universally legal, thanks to Lawrence v. Texas. In fact, the Kansas courts had based their rulings (initial conviction and appeal) in Limon's case on laws that Lawrence v. Texas struck down. So when Lawrence v. Texas was handed down, the U.S. Supreme Court sent Limon's case back to the Kansas Court of Appeals for reconsideration in light of their decision. The appeals court upheld Limon's conviction, however, and he remained in prison.

Furthermore, do you want to know one reason why there hasn't been more outrage over Limon's case? I learned this from a few years ago after e-mailing back and forth with an ACLU lawyer involved:

Limon's parents are deeply religious. They felt he deserved to go to prison for being gay.

So, yes, one way to look at it is that Matthew Limon is "a criminal, a mentally challenged, three-time sex offender."

Another way to look at it: a mentally disabled boy held under extraordinarily repressive circumstances has languished in prison for three years solely because he's gay. Scheptech may be talking about perceptions, I'm talking about a person. And that he's finally free after far too long in prison is a great thing.
posted by grrarrgh00 at 2:52 PM on October 22, 2005

Limon's parents are deeply religious. They felt he deserved to go to prison for being gay.

You'd be surprised how often that leads to ... "He had been attending a boarding school for the developmentally disabled"

Light one up fer me gar
posted by WolfDaddy at 3:01 PM on October 22, 2005

One of the foundations of justice as conceived in this and other liberal democracies is the notion of protecting the rights of individuals. Statutory rape, in this view, can be justified as a valid crime because it seeks to protect the rights of minors not to be unfairly imposed upon for sexual access. Murder also clearly seeks to protect the rights of individuals to be secure in their persons.

When it comes to differential sentencing for what appear to be the same criminal act, the government needs to rationally justify the differentiation. In the case of hate-crime murders, the act is seen as a crime not only against an individual victim, but a crime of intimidation directed against a specific segment of society. In essence, murder for revenge and murder in the pursuit of terrorization are two different crimes. There's a clear social harm there that hate-crime statutes seek to discourage.

In the statutory rape case, the government could not come up with a convincing rational basis for sentencing a statutory rapist differently based on his or her gender. Thus, the Kansas Supreme Court wisely struck down the discriminatory language in the statute.

Law and morality are not the same. Lying is immoral, but most of the time, it is not illegal. Harboring thoughts of lust and revenge is immoral to some people, but that is also perfectly legal. These things are legal because the job of the law is to keep the peace and protect people's rights, not to enforce morality. Some people consider homosexual conduct to be immoral, or at least less moral than heterosexual conduct. However, this alone does not give cause for the government to discriminate between the two. Why? Because moral disapproval alone is not enough to justify discriminatory legal treatment.

On preview: "The central character," Matthew Limon, had recently turned 18 at the time of his conviction.

If Limon was 17 and the other boy 14 at the time of the sexual acts in question, that wouldn't even be a crime at all in my state (New York)! I think he can definitely count on a wider circle of sympathy than NAMBLA.
posted by skoosh at 3:56 PM on October 22, 2005

I spoke too soon... looks like he could still be charged with sexual misconduct, a Class A misdemeanor.
posted by skoosh at 4:13 PM on October 22, 2005

scheptech may be talking about perceptions

Yes, generally held perceptions and how this kind of legal development doesn't necessarily lead to greater freedom or liberalism overall despite the gist of the post and assumptions about that apparent in the following discussion.

I'm suggesting the main reason there's been little outrage is because no one wants to highlight it, yes the parents but more importantly: the story quite simply feeds into perceived connections between homosexuality, mental illness, crime, and pedophilia.

At at personal level I wish Matthew himself a far better break in life than he's had so far and hope he never has reason to encounter the criminal justice system or find himself in the news again.
posted by scheptech at 4:23 PM on October 22, 2005

by global warming I presume you mean one of the cycles of the center of the solar system? or can I just light another can of sterno?
posted by garficher at 2:16 PM PST on October 22

what
posted by Optimus Chyme at 4:25 PM on October 22, 2005

Metafilter: His willy in another dude's crap hole.

Aha! Finally! Proof that this is indeed a boyzone.
posted by Secret Life of Gravy at 5:02 PM on October 22, 2005

The Kansas Supreme Court is made up of a majority of Justices appointed by Dems. Here is a breakdown:

McFarland - Gov. Bennett (R) 77
Allegrucci - Gov. Carlin (D) 87
Davis - Gov. Finney (D) 93
Nuss - Gov. Graves (R) 02
Luckert - Gov. Graves (D) 03
Beier - Gov. Sebelius (D) 03
Rosen - Gov. Sebelius (D) 05 - pending - did not participate in this case

The legislature is going to attempt to amend the current appointment process in order to prevent this from happening in the future. This decision will only add fuel to that fire.

As a Kansas attorney, I believe the decision was correctly decided. The state didn't have much of a case. I remember reading their brief last year and thinking it was pretty thin. I think their argument was that by punishing homosexual behavior in a more severe manner than heterosexual behavior it would encourage kids to get married.

When a hardcore conservative like AG Phill Kline disagrees with the law, and preliminarily declines to appeal the decision, you know that the law was probably unconstitutional.
posted by sp dinsmoor at 6:50 PM on October 22, 2005

sp dinsmoor, as a lawyer can you speak to the issue of whether or not the KSC could have found the concept of harsher punishment - as a whole- for the same apparent actual crime inapprpriate?
re: my earlier post
posted by garficher at 8:03 PM on October 22, 2005

On the upside, it will be fun when the data start to come in after this ruling has been in force for a year and there isn't any negative social impact whatsoever.

Now, I'm fairly certain that within a year from now everyone in Kansas will be married to multiple animals and have AIDS.
posted by Krrrlson at 8:08 PM on October 22, 2005

garficher -

The Kansas Legislature has the ability to make laws for the purpose of protecting the health, safety, and welfare of Kansas residents. The statute which criminalizes murder is justified by the fact that murder jeopardizes the health, safety, and welfare of people within this state. Although there is moral disapproval of murder, it is not this moral disapproval that makes the Kansas murder statute a valid excercise of state power.

In the Kansas Romeo and Juliet statute there is a harsher sentence for a crime based on a specific and arbitrary classification. The fact that there is moral disapproval of this type of conduct does not justify the statute. The state has to have a constitutionally valid reason for punishing homosexual head more severly than they punish heterosexual head.

Imagine that Kansas wanted to enact a statute that required a reduction in a murder sentence if the person who was murdered belonged to a specific race, class, gender, or sexual orientation. This would be a violation of the equal protection clause unless the state could show that there was a valid reason for reducing the sentence. The fact that there may be people who morally disapprove of people belonging to this specific race, class, gender, or sexual orientation is not a valid reason for this reduction in sentencing.

This answer has been simplified somewhat. There are different levels of scrutiny (what constitutes a valid reason) for different types of classifications (race, class, gender, sexual orientation, etc.), but all that can get pretty confusing. I hope you get the general idea. (This is not legal advice, and may not even be totally correct. I am not a con. law expert.)
posted by sp dinsmoor at 12:22 AM on October 23, 2005

Now, I'm fairly certain that within a year from now everyone in Kansas will be married to multiple animals and have AIDS.

How do you know they aren't/don't already?

Just kidding...I live here. More than likely, this just means the major churches will go on a big "0H N03Z T3H 9H3Y 1Z W1NN1N9 OMGWTF" spree. If it is ever proven beyond a reasonable doubt that none of the passages in the Bible that are used to justify the Christian stance on homosexuality actually apply to homosexuality, there are going to be a lot of crow pies being delivered to the doorsteps of a lot of churches. By exaggeratively dressed homosexuals. Wearing crosses.
posted by deusdiabolus at 1:07 AM on October 23, 2005

FYI, what happened in this case is totally legal in Canada. Just some food for thought.
posted by mek at 1:56 AM on October 23, 2005

On a somewhat related note, to allow this individual to be stigmatized on the basis of being a "repeated sex offender" is remarkably ignorant and irresponsible to boot. As far as I can tell, all of his "sex crimes" were consensual sex acts, and are not considered crimes at all by many developed nations.
posted by mek at 2:04 AM on October 23, 2005

"I'm fairly certain that within a year from now everyone in Kansas will be married to multiple animals and have AIDS.
posted by Krrrlson at 8:08 PM PST on October 22 [!]"

Do you have these sorts of thoughts often ?
posted by troutfishing at 9:37 PM on October 23, 2005