Lawrence, Limon, Equal Protection, Romeo & Juliet

[Marty Lederman]

Back on June 27th, I posted the item below regarding a GVR that the Court issued in the wake of Lawrence.

The Kansas Court of Appeals on remand today issued a 2-to-1 decision once again rejecting the equal protection claim. Notably, neither of the two opinions of the judges in the majority so much as mentions Justice O'Connor's equal protection concurrence in Lawrence. And some of the reasoning of those two opinions, frankly, leaves much to be desired. Judge Green's opinion, for example, remarkably cites Cronin v. Adams, 192 U.S. 108, 114-15 (1904) (upholding prohibition on sale of liquor to women), as authority for the argument that it is permissible for a legislature to make sex-based classifications in order "to protect the morals of women"! 

There is only a single ground on which the two judges in the majority agree that the state satisfies rational-basis review -- namely, that (in the words of Judge Green) "[t]he legislature could well have considered that same-sex sexual acts between males might increase their risk of contracting certain infectious diseases. Medical literature is replete with articles suggesting that certain health risks are more generally associated with homosexual activity than with heterosexual activity." Judge Malone, for his part, reasons that "there are certain health risks more generally associated with homosexual activity than with heterosexual activity, especially among males." He calls this rationale "tenuous in some respects," but nevertheless concludes that it "provides a 'reasonably conceivable state of facts' sufficient to justify the statutory classification."
  ----- Original Message ----- 
  From: Marty Lederman 
  To: CONLAWPROF at listserv.ucla.edu 
  Sent: Friday, June 27, 2003 11:06 AM
  Subject: Lawrence, Equal Protection, Romeo & Juliet


  Thought there might be some interest in a post-Lawrence development today, about which I posted the following on SCOTUSblog:

  Lawrence, Romeo & Juliet, and a GVR
  The Court today granted the petition in No. 02-583, Limon v. Kansas, vacated the judgment and remanded the case to the Court of Appeals of Kansas for further consideration in light of Lawrence. The case raises the question whether the rationale of Justice O'Connor's separate equal protection concurrence affects a conviction for sexual sodomy involving a minor. 

  Limon was an 18-year old man convicted of "statutory" criminal sodomy of an almost 15-year old male minor. Limon was sentenced to more than 17 years (206 months) in jail. The facts as related in the state-court opinion are as follows: 

  Limon has been diagnosed in the intellectual range between "borderline intellectual functioning" and "mild mental retardation." This means he does not function at the level of a normal 18 year old. He had been admitted to the Lakemary Center (Lakemary), a Kansas residential school for developmentally disabled children. The center focused on serving students with developmental disabilities and psychiatric disorders or behavioral problems. . . . At the time of the allegations in this case, Limon had just had his eighteenth birthday. Limon met another male student at Lakemary, M.A.R., who consented to Limon performing oral sex upon him. When M.A.R. requested that Limon stop, he stopped. It is not clear from the record how the police became involved in this case. Upon their intervicw ofLiroon at the school, he admitted to having had consensual oral sexual contact with M.A.R. M.A.R. was evaluated by Earl Robert Kilgore, Jr., of Lakemary, who also evaluated Limon. M.A.R. was found to function in the upper limits of the range of mild mental retardation, which represented a slightly lower functioning than Limon. M.A.R. was 14 years and 11 months old at the time of the incident. Limon was 3 years, 1 month, and a few days older than M..A.R. 

  Limon was convicted under K.S.A. 21-3505(a)(2), which defines unlawful criminal "sodomy" as "sodomy with a child who is 14 or more years of age but less than 16 years of age." 

  Because the case involves a minor, Lawrence is not directly controlling. However, Kansas, like some other states, has a so-called "Romeo and Juliet" law, pursuant to which the consensual sexual act in question here would have subjected Limon to a far less severe penalty (13-15 months) had the minor been of the opposite sex. (K.S.A. 2000 Supp. 21-3522 reads: "(a) Unlawful voluntary sexual relations is engaging in voluntary: (1) sexual intercourse; (2) sodomy; or (3) lewd fondling or touching with a child who is 14 years of age but less than 16 years of age and the offender is less than 19 years of age and less than four years of age older than the child and child and the offender are the only parties involved and are members of the opposite sex.") 

  Limon raised an equal protection challenge, which the Kansas courts denied. Those courts will now have to decide whether the rationale in Justice O'Connor's opinion requires that Kansas treat same-sex and opposite-sex statutory sodomy on equal terms. 

  If the Kansas courts answer that question in the affirmative, they then presumably will be confronted with a statutory question whether the "Romeo and Juliet" provision should be extended to same-sex sodomy, or whether it should be invalidated altogether, even as to persons of opposite sex. Cf. People v. Liberta, 474 N.E.2d 567 (N.Y. 1984) (sustaining an equal protection challenge to the state's rape law, which included an exemption for spousal rape, but further holding that the legislature, if faced with the choice, would probably extend the prohibition of rape to married persons, rather than abolish the crime altogether, leaving intact that portion of the statute under which the defendant was convicted), cert. denied, 471 U.S. 1020 (1985). 
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