The Kansas Supreme Court has delivered the last word in a long-running challenge to the state sentencing law known as â€śRomeo and Juliet.â€ť The statute relieves teenagers of most penalties for criminal sodomy with other teens around their own age. But it applies specifically to teens caught in consensual heterosexual situations. In a unanimous decision released Friday, the justices struck the section of the law that limited its reach to boy/girl malfeasance.
The case of Kansas v Limon began with the criminal conviction of Matthew Limon, a young man accused of having oral sex just after his 18th birthday with a boy of nearly 15. Both boys were students at an institution for developmentally disabled kids. According to court records, both functioned at about the same level intellectually, somewhere on the border between slow and mildly retarded.
Because Limon did not qualify for Romeo and Juliet, and because he had two prior charges of juvenile sex offenses, he was sentenced as an adult sex criminal to over 17 years behind bars. The American Civil Liberties Union came to his defense in what the ACLUâ€™s Lesbian and Gay Project Director, Matt Coles initially considered a â€śno brainer.â€ť
Even with two strikes against him, if Limon had been caught with a girl he would have faced no more than 15 months in jail. The ACLU did not contest the stateâ€™s right to punish underage sex. They argued instead that the huge disparity in sentencing for gay and straight teens violated the right to equal protection under the law.
In 2002, the Kansas court of appeals disagreed, upholding Limonâ€™s sentence based on the U.S. Supreme Courtâ€™s ruling in Bowers v Hardwick. Handed down in 1986, Bowers upheld Georgiaâ€™s right to criminalize gay sex.
After the Kansas Supreme Court declined to review the Limon case, the ACLU petitioned the U.S. Supreme Court for review. For months, there was no word from Washington either way. Then, in late June of 2003, two days after the High Court struck Bowers v Hardwick along with the Texas sodomy law, the justices told the Kansas appellate court to reconsider Limon in light of the newly articulated legal reasoning in Lawrence v Texas.
Surprisingly under the circumstances, the court of appeals managed to come up with the same result even without the Bowers precedent on which to rely. In a fractured decision, the two-man majority said Lawrence had been decided on principles of due process and did not apply to the equal protection question presented in Limon. The two cases were also distinguished by the fact that one involved adults and the other minors. The court then gave credence to an embarrassing list of proposed state interests that might justify a special punishment for homosexual sex, including promoting parenthood, preventing sexually transmitted diseases, and protecting the sexual development of children.
As Matthew Limon continued to serve his time, his case was once again appealed to the Kansas Supreme Court. This time, the justices accepted review, and last week, they finally ruled in Limonâ€™s favor. In a strongly worded 19-page opinion, the court held that Lawrence does indeed control the Limon case, noting that the Lawrence Court â€śsignaled the application of [due process] principles to equal protection analysis.
In fact, Justice Oâ€™Connor wrote a separate opinion in Lawrence, striking the Texas sodomy law on equal protection grounds. Further, Justice Kennedy indicated that the Court could have ruled on either theory, but selected the Due Process Clause in order to deal a death blow to Bowers v Hardwick. Writing for the majority, Kennedy also stressed that equal protection and due process â€śare linked in important respects, and a decision on the later point advances both interests.â€ť
By taking an expansive view of Lawrence, the Kansas opinion helps pave the way for future courts to do the same. The justices also reiterated the Lawrence Courtâ€™s conclusion that a state may not disfavor a particular class of people based solely on the moral views of the majority.
The Kansas court gave the state 30 days in which to charge Mathew Limon under what can now be termed the Romeo and Romeo law, or take other action to remedy his situation. According to the ACLU, it may take a few weeks to extricate Limon from jail. â€śWhen it does happen,â€ť writes Matt Cole, â€śMatt Limon will have spent four years longer in prison because he is bisexualâ€¦. But he will be out shortly. Twelve years before the state of Kansas would have released him.â€ť
Coles added: â€śI donâ€™t remember the last time I felt so good about a case.â€ť
Senators Still Toying with Federal Marriage Amendment
Kansas Senator Sam Brownback, the chairman of the Senate Judiciary Committeeâ€™s constitutional subcommittee, held hearings last week on the notorious Federal Marriage Amendment, a proposal to amend the U.S. Constitution with a ban on same-sex marriage. Only three of the nine subcommittee members were around for the hearings, which appeared to be an opportunity to keep the amendment simmering on a legislative back burner.
A federal amendment requires a super majority in Congress, followed by ratification by 38 state legislatures. Last year, the amendment failed to win a simple majority in the Senate.
Wisconsin Senator Russell Feingold, the only Democrat to attend the Oct. 20 hearing, was not impressed. â€śAs time has passed since the Massachusetts court ruling [legalizing same-sex marriage],â€ť he said. â€śI think it has become clear that passing a constitutional amendment would be an extreme and unnecessary reaction.
That kind of language begs the question of whether a federal amendment would become â€śnecessaryâ€ť in the event that other states followed Massachusettsâ€™ lead. The Washington Supreme Court is now overdue to rule on a challenge to state marriage law that was argued back in March. In the summer of 2004, two lower courts in Washington both ruled that state marriage law unconstitutionally discriminated against same-sex couples, and should be struck.
Observers say the high court could go either way. If indeed the justices come down in favor of marriage rights, the ruling could not be appealed further and couples would be free to get married on the West Coast of the United States as well as the East. Presumably, such a decision would renew the calls for a federal â€śsolutionâ€ť from opponents of marriage rights.
Once the Washington justices rule, all eyes will turn to New Jersey, where Lambda Legal Defense filed written briefs before the state supreme court last Friday. The New Jersey freedom-to-marry case has slowly risen up the Garden Stateâ€™s judicial ladder since its launch in June, 2002. After losses before the lower court and the state appellate court, the challenge has finally landed before the justices, who would normally be expected to hold oral arguments early next year and decide several months after that.
Meanwhile, marriage cases in New York and California are pending before state appellate courts, while challenges to marriage law in Connecticut and Maryland are in even earlier stages. It seems certain that a second and third court ruling in favor of same-sex couples is not far away, and that the national debate over marriage equality will consequently continue.
Looking back at that debate, it was just six years ago that the state of Vermont was Ground Zero in the culture wars, alive with dissent over court-ordered civil unions. Last week, the Associated Press reports, a group of 97 out of 180 Vermont lawmakers sent a letter to House Speaker Dennis Hastert and Senate Majority Leader Bill Frist, asking Congressional leaders to bestow federal rights on Vermont civil union partners.
â€śWe urge you to extend the same federal statutory benefits and protections offered to married couples to those couples who have entered into a state sanctioned civil union,â€ť wrote the local politicians. Such a move â€śwould not constitute the equivalent of establishing a federal definition of marriage,â€ť they went on. â€śRather it would enable these individuals to exercise all of the benefits and privileges intended in a state civil union law.â€ť
Talk of the TownThe first item on my news list is titled â€śIs God mad at us?â€ť Our friend Jerry Falwell posed the question, which he believes lies on the tips of tongues, â€śon street corners and in classrooms, beauty salons and coffee shops all over our nation.â€ť Other paranoid points to ponder include: â€śIs the end of the age upon us?â€ť â€śIs God judging Planet Earth?â€ť and â€śIs the second coming of Christ at hand?â€ť Golly. Letâ€™s hope not.
Iâ€™m not really worried. God is clearly not mad at Texas considering we escaped major damage during Hurricane Rita, and in His wisdom He has ranked the Longhorns Number One in the BCS polls. Oh, you think He has nothing to do with University of Texas football? Jerry Falwell disagrees. â€śSince God is the Creator and Owner of the universe,â€ť writes the reverend, â€śnothing happens without His direction or His permission.â€ť Given this observation, the more appropriate questions might be: â€śIs God mad at the University of Southern California?â€ť â€śIs God judging Oklahoma?â€ť and â€śIs Vince Young the second coming of Christ?
In case youâ€™re wondering, Falwellâ€™s â€śhonest answerâ€ť is a refreshingly modest â€śI do not know.â€ť However, â€śthese are dark days,â€ť he warns. â€śWe must be prepared for His Imminent return while we share the Gospel in tandem with our mercy ministries of feeding the hungry and clothing the naked.â€ť
Mercy! Sign me up for that second ministry, and fetch me my tape measure. Quick, before He returns!
The Plot Thickens
Before we leave the comforting embrace of the religious right, I have a couple more delusional items to share. First, the folks at Focus on the Family are wondering whether the ABC television show â€śCommander in Chiefâ€ť is part of a plot to familiarize the country with a female president in order to pave the way for Hillary Clintonâ€™s election in 2008. â€śThe show,â€ť writes James Dobsonâ€™s organization, â€śhas many speculating whether the real goal us not just entertainment, but to prepare viewers to more easily accept a Clinton candidacy.â€ť (Sing with me! Hey, You! Get offa my cloud!)
Not A Prayer
Then, I was reading along in another Focus on the Family newsletter, when I encountered the inexplicable headline: â€śSee You at the Pole Rescheduled After School Notified of Law.â€ť It turns out that â€śSee You at the Poleâ€ť is an official student prayer movement, culminating in an annual day of praying around school flagpoles. It began in 1990 (in Texas bien sur) where one Saturday night God â€śpenetrated the heartsâ€ť of a group of teenagers â€ślike never before.â€ť
According to the Pole website, â€śthe students were broken before God and burdened for their friends. Compelled to pray, they drove to three different schools that night. Not knowing exactly what to do, they went to the school flagpoles and prayed for their friends, schools and leaders.
Sounds like an X-cellent adventure, indeed. And the evening evidently spawned a whole new chapter in Christian youth activism. I do wonder what their parents said when they came home â€śbroken by Godâ€ť at three in the morning.
â€śBut Mom! He penetrated my heart!
â€śDo you have any idea what timeâ€¦ he penetrated what?
â€śThe Lord! It was the Lord. He showed me to His pole.
â€śWhat pole? Whereâ€™s your sister?â€ť
Down East Drama
Alright, letâ€™s get serious. Now, everyone knows Texas is facing a vote on an amendment to outlaw same-sex marriage and other legal ties, but thereâ€™s another gay-related election scheduled for Nov. 8. Specifically, it is yet another attempt to repeal Maineâ€™s gay rights law. Yes, I know! Here we go again.
Close observers of Blueberry State politics will recall that Maine has passed a gay rights bill three times in the last several years. The first two times, voters repealed it, once in a special election in February of 1998, and again in November 2000 (by a hair). Dogged activists and friendly politicians have rammed the damn thing through yet again, however. And maniac conservatives have rallied round the reactionary referendum once more, looking for a three-peat. Polls say they wonâ€™t succeed this time, but polls said as much both in 1998 and in 2000, so weâ€™ll see.
See You at the Poll
Meanwhile, all eyes will probably be on Texas that Tuesday evening, as a handful of Lone Star voters straggle off to the ballot boxes to cast their vote for, um, nothing. Thatâ€™s just about what you will find on the ballot unless you live in Houston where youâ€™ve got a mayorâ€™s race. Elsewhere, itâ€™s just a bunch of boring propositions, including the one that activists now insist will outlawâ€”not just gay marriageâ€”- but marriage in general throughout the state.
This absurd red herring is our latest tactic in the delicate dance that passes for a civil rights movement here in the Bad Baseball State. And you know what? It might work. The good guys held a press conference on Monday featuring several heterosexual couples who claim the proposed anti-gay amendment is worded badly and will inadvertently dissolve their marriages as well. Why take the risk, they warn insanely?
Â â€śAn activist judge could use this questionable language to end marriage as we know it,â€ť said one woman.
Thereâ€™s something creepy about gay activists using the jargon of the extreme right as part of a highly deceptive political strategy, but who are we to judge? Oh, what the hell. Letâ€™s judge! It reflects our spineless inability to advocate for marriage equality in the public square and demeans our cause.
There. I feel better now. Oh, and the KKK is coming to Austin to demonstrate in favor of the amendment on Nov. 5. I hope they wear their sheets and hoods.
When you add everything upâ€”the low turnout, the klan, the confusing â€śsave marriage, vote noâ€ť campaign messageâ€”we just might pull a rabbit out of the hat here. Iâ€™d sacrifice my ethical qualms for a victory.
So Sue Me, Sue Me, What Can You Do Me? I Love You
What else is there to report? How about the New Jersey man who was arrested for pasting a homemade bumper sticker on the car of a lesbian town leader in Long Hill? The yellow sticker depicted a man, woman and a child. It read â€śmarriage is for the benefit of children,â€ť and â€śno gay marriage in New Jersey.â€ť
According to the Daily Record, police traced the hate sticker through a fingerprint to one George M. Dengler. â€śIt was stupid to put it on there,â€ť Dengler admitted later. The 51-year-old faces up to 18 months in jail for harassment and bias intimidation against Gina Genovese. Talk about a man with time on his hands.
And finally, how about New York philanthropist, J. David Enright IV, who is suing the Catholic Church in Albany along with a bishop and a pedophile priest for $5 million? Enright, 51, says the priest abused him when he was a seven-year-old at Camp Tekawitha, and turned him gay as a result.
Reacting to the news, a doctor from Utah informed readers that â€śone studyâ€ť found 46 percent of gay men had been molested, as had 22 percent of lesbians. I guess one manâ€™s molestation is another manâ€™s first love. As for the lesbians, you know they wanted it. OK, technically they might say â€śnoâ€ť at first. But just tekawitha grain of salt. If youâ€™re persistent, theyâ€™ll come around in time.