By ADAM LIPTAK
Matthew R. Limon had just turned 18 when he had consensual oral sex with a boy just shy of 15 at a Kansas school in 2000. He was convicted of criminal sodomy and sentenced to 17 years in prison. Had the sex been heterosexual, the maximum penalty would have been 15 months.
Yesterday, the Kansas Supreme Court ruled that the starkly different penalties violated the federal Constitution's equal protection clause. It said the state's "Romeo and Juliet" statute, which limits the punishment that can be imposed on older teenagers who have sex with younger ones, but only if they are of the opposite sex, must also apply to teenagers who engage in homosexual sex.
Mr. Limon will soon be released, his lawyer, James D. Esseks, said. "He's spent an extra four years and five months in jail only because he's gay," said Mr. Esseks, a lawyer at the American Civil Liberties Union.
In 2003, in a decision called Lawrence v. Texas, the United States Supreme Court struck down a Texas law that made gay sex between adults a crime. But a Kansas appeals court ruled last year that the Lawrence decision did not affect Mr. Limon's case, reasoning that it did not involve minors and involved, for the most part, privacy rights rather than equal protection.
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.
In a brief filed in the case, Phill Kline, the Kansas attorney general, said a ruling in Mr. Limon's favor would "begin a toppling of dominoes which is likely to end in the Kansas marriage law on the scrap heap."
"Sexual desires rather than communal and historical sensitivities would then define the marital relationship," Mr. Kline added, "allowing such combinations as three-party marriages, incestuous marriages, child brides and other less-than-desirable couplings."
Mr. Esseks called the argument "patently ridiculous," saying, "Their premise seems to be that gay people have to stay in prison, be made invisible and not have any degree of rights or else gay people will be able to get married."
In a statement issued yesterday, Mr. Kline was more conciliatory. He said that he had voted against the law as a state legislator, "as I did not support the public policy of providing a lengthier sentence for same-sex exploitation as contrasted with opposite-sex exploitation." He added that his office would probably not appeal to the United States Supreme Court.
* Copyright 2005 The New York Times Company