It’s obviously good news that the Kansas Supreme Court has ruled that anti-gay discrimination in the state’s statutory rape law is unconstitutional. This would this also seem to mean that Michael M.–which ruled that statutory rape laws that exclude women from punishment are constitutional–is an effective dead letter (unless the Supreme Court overturns this decision) since gender classifications face a higher level of constitutional scrutiny that classifications based on sexual orientation. And that’s a good thing (the discrimination being illegal, I mean, not the fact that classifications based on sexual orientation do not face a higher level of scruitny, which they should.) As Brennan correctly noted in his Michael M. dissent, the law was quite clearly based in “outmoded sexual stereotypes,” and no aspect of criminal law should hand out differential punishments based on irrational discrimination.
There are a couple of other interesting things about the case. The first is to note that the discrimination here is far from minor:
In a case closely watched by national groups on all sides of the gay rights debate, the high court said the law ”suggests animus toward teenagers who engage in homosexual sex.”
Gay rights groups praised the ruling, while conservatives bitterly complained that the court intruded on the Legislature’s authority to make the laws.
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.
16 extra years in the slammer purely because of your sexual orientation–serious discrimination indeed. The other thing is that we can see in the lower court’s opinion yet more examples of classic cultural conservative illogic, neatly skewered by the KSC’s opinion:
The two appeals judges in the majority offered various justifications for the differing punishments.
One judge, Henry W. Green Jr., said the Kansas law promoted “traditional sexual mores,” “the traditional sexual development of children,” marriage, procreation and parental responsibility. Judge Green added that the law helped protect minors from sexually transmitted diseases, which he said were more generally associated with homosexual than with heterosexual activity.
A second appeals court judge, Tom Malone, endorsed only the final rationale, though he called it tenuous. A dissenting judge, G. Joseph Pierron Jr., wrote that “this blatantly discriminatory sentencing provision does not live up to American standards of equal justice.”
In its decision yesterday, the Kansas Supreme Court ruled that the Lawrence case required reversal of the lower-court decision in Kansas. The State Supreme Court rejected all justifications offered by the appeals court. “The moral disapproval of a group cannot be a legitimate state interest,” Justice Marla J. Luckert wrote for the unanimous court.
Justice Luckert rejected the argument that homosexual sex is more likely to transmit diseases.
“The Romeo-and-Juliet statute is overinclusive because it increases penalties for sexual relations which are unlikely to transmit H.I.V. and other sexually transmitted diseases,” Justice Luckert said, referring to the oral sex in the Limon case and sex involving two women. “Simultaneously,” she continued, “the provision is underinclusive because it lowers the penalty for heterosexuals engaging in high-risk activities,” notably anal sex.
The fit between the law and the rationales offered for it is so poor, she concluded, that it violates the Constitution’s equal protection clause.
The appeals court’s majority, in other words, depended on one judge for whom the public health rationale was the only justification that could save the statute. But this rationale is, of course, transparently unserious. As the KSC pointed out (and as a couple people noted when Eugene Volokh trotted out his own pernicious arguments about homosexuality and public health), if male homosexuality is to be discouraged because it is more likely to lead to STDs, then the state would have to be logically committed to encouraging same-sex intercourse among women, as this is safer in general than heterosexual intercourse, and certainly could not punish relations between women more than heterosexual relations. But the Kansas law didn’t make such a distinction, because of course the arguments about “traditional sexual mores” are doing 100% of the work. And this is not the rational, secular justification that is necessary if the state is going to mete out massively inequitable punishments to different groups of people.
The fact that even in one of the country’s most conservative states judges are beginning to see through this kind of discrimination is a very positive sign, and also shows the importance of overturning Bowers.