Kansas Court Forbids Higher Punishment for Same-Sex Misconduct:
The Kansas Supreme Court issued its decision in Kansas v. Limon today, invalidating a Kansas statutory scheme that imposed higher punishments for same-sex sexual misconduct than opposite-sex sexual misconduct.

   A week after he turned 18, Matthew Limon had oral sex with a 14 year old boy. The act occurred in February 2000, when both were students at a school for developmentally disabled children. Limon was charged with criminal sodomy under Kansas law, K.S.A. 21-3505(a)(2), which states that "[c]riminal sodomy is . . . sodomy with a child who is 14 or more years of age but less than 16 years of age."  Limon was convicted and sentenced to serve a very severe sentence, 206 months (17 years, 2 months) in prison; the high sentence apparently was due in part to Limon's prior criminal record.

  The basis of Limon's legal challenge is the existence of the Kansas "Romeo and Juliet" statute, K.S.A. 21-3522, enacted in 1999, which imposes lower sentences than would otherwise exist for a specific set of sex offenses. Specifically, the statute offers much lower punishments for sexual misconduct if (1) the victim is a child of 14 or 15; (2) the offender is less than 19 years of age and less than 4 years older than the victim; (3) the victim and offender are the only ones involved; and (4) the victim and offender are members of the opposite sex. If Limon had been convicted under this statute, he would have received about 14 months in prison, not 206.

  Limon argued that Kansas law violated the equal protection clause of the Fourteenth Amendment because if the act had taken place between opposite sex participants, Limon would have received a much lower punishment under the Romeo & Juliet statute than he did under the criminal sodomy statute. The Kansas Supreme Court agreed, finding that the different treatment did not survive rational basis scrutiny and was therefore unconstitutional under the Equal Protection clause:
  We conclude that K.S.A. 2004 Supp. 21-3522, the Kansas unlawful voluntary sexual relations statute, does not pass rational basis scrutiny under the United States Constitution Equal Protection Clause or, because we traditionally apply the same analysis to our state constitution, under the Kansas Constitution Equal Protection Clause. The Romeo and Juliet statute suffers the same faults as found by the United States Supreme Court in Romer and Eisenstadt; adding the phrase "and are members of the opposite sex" created a broad, overreaching, and undifferentiated status-based classification which bears no rational relationship to legitimate State interests. Paraphrasing the United States Supreme Court's decision in Romer, the statute inflicts immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it. Furthermore, the State's interests fail under the holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest. As Justice Scalia stated: "If, as the [United States Supreme] Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest," the statute cannot "survive rational-basis review." 539 U.S. at 599 (Scalia, J., dissenting).
  One interesting aspect of the court's opinion is that the defendant wasn't actually charged under the statute that the court found unconstitutional, at least if I am reading the opinion correctly. As a technical matter, the defendant was convicted of sodomy; the court found the Romeo and Juliet statute unconstitutional; remedied the situation by rewriting the R&J statute in a way that made it constitutional; reversed the conviction for sodomy, even though that statute technically wasn't challenged; and then ordered the state to retry Limon (of they still want to press charges) under the new rewritten Romeo & Juliet statute. Am I right about that? I suppose they did this for entirely pragmatic reasons, but it's somewhat unusual.

  A second interesting aspect of the opinion is that the merits (if not the remedy) are based on federal law, which means that the U.S. Supreme Court will have the opportunity to review the decision if Kansas petitions for certiorari.