No Romeo

Defying the U.S. Supreme Court, the Kansas Court of Appeals in late January again upheld the legality of a state law mandating stricter sentences for gay youth engaged in sex with younger teens.

Under Kansas’ so called Romeo and Juliet law, sexual relations with a minor is a lesser crime if the older teenager is under 19 and if the age difference is less than four years — so long as the youths are of the opposite sex.

In its 2-1 decision, the Kansas court affirmed the original 17-year sentence of Matthew Limon, who turned 18 the week before he performed consensual oral sex on another boy, then nearly 15, while the two were at a private group home for people with developmental disabilities. Had Limon engaged in sex with an underage girl, he would have faced a maximum sentence of 15 months.

Because Romeo and Juliet explicitly excludes gay sex, Limon was charged with criminal sodomy. Before his trial in 2000, his attorneys moved to dismiss the charge, arguing that the law violates the Equal Protection Clause of the 14^th Amendment by discriminating on the basis of sexual orientation. The court disagreed and Limon was convicted on the criminal charge.

He appealed through the Kansas courts, which upheld the conviction and sentence based on Bowers v. Hardwick—the 1986 U.S. Supreme Court case that upheld anti-gay sodomy laws — and asked the Supreme Court to hear his appeal in 2002.

In June of that year, the High Court decided Lawrence v. Texas, overturning Bowers and striking down Texas’ sodomy laws, and remanded Limon’s appeal for reconsideration to the Kansas courts. The Kansas court this January affirmed the original sentence.

In its decision, the court offered three justifications for upholding more severe sentences for gay youth: it severely reduces the spread of sexually transmitted diseases, it encourages ​“traditional sexual mores,” and it promotes procreation and marriage.

In his opinion, Justice Henry W. Green Jr. noted: ​“Throughout history, governments have extolled the virtues of procreation as a way to furnish new workers, soldiers, and other useful members of society. The survival of society requires a continuous replenishment of its members.”

Justice Joseph Pierron initially upheld Limon’s sentence but reversed course in January, writing: ​“Persons in power and authority have historically been tempted to discriminate against people they do not like or understand. … This blatantly discriminatory sentencing provision does not live up to American standards of equal justice.”

Limon’s attorneys plan to appeal. If his conviction is upheld, upon his release at age 36 Limon must register as a sex offender and undergo another five years of supervision.