Homosexuals Ask Supreme Court To Strike Down 'Anti-Gay' Laws

By Robert B. Bluey | July 7, 2008 | 8:04 PM EDT

(Editor's note: The following story contains material that may be offensive to some readers.)

(CNSNews.com) - The American Civil Liberties Union is asking the U.S. Supreme Court to throw out a 17-year jail sentence for a homosexual teenager who was caught having oral sex with a minor. It is one of two cases the court could hear this term involving homosexuals and sodomy laws.

The ACLU filed a petition with the court Thursday in the case of Limon v. Kansas. There is no guarantee the Supreme Court will hear the case, but the Limon dispute and another challenge to a Texas sodomy law could reshape how states interpret equality and privacy for homosexuals.

At issue in both cases, but to a lesser degree in Limon, is the high court's 1986 decision in Bowers v. Hardwick, which essentially ruled that states could enforce laws restricting sex between homosexuals. Some civil rights groups have deemed the decision "anti-gay."

That same label is being applied to the so-called "Romeo and Juliet" law in Kansas, which distinguishes consensual sex between teenagers from cases where older adults exploit children.

The case stems from a February 2000 incident in which 18-year-old Matthew Limon had oral sex with a 14-year-old boy. The sex was considered consensual, but authorities learned of the encounter and charged Limon under the Kansas sodomy law. He was convicted and is now serving a 17-year jail sentence.

In its petition to the Supreme Court, the ACLU claims Limon was treated unfairly because the stricter sodomy law was used to convict him instead of the more lenient "Romeo and Juliet" statute. Instead of being sentenced to 15 months in jail under that provision, Limon received 17 years, primarily because the "Romeo and Juliet" law only applies to "members of the opposite sex."

The law also pertains to people under the age of 19 who engage in consensual sexual activity with teens between 14 and 16 years old, as long as their ages are less than four years apart. All aspects of the law apply to Limon, the ACLU argues, except the "opposite sex" clause.

This is a violation of his equal protection rights as guaranteed by the Constitution, said Tamara Lange, a staff attorney with the ACLU's Lesbian and Gay Rights Project, which is representing him.

"We're not challenging whether Kansas can criminalize behavior between teenagers," she said. "Matt Limon is not challenging that. He's just saying he should get an equal penalty. He shouldn't get extra time for being gay."

The ACLU's primary argument involves the equal protection clause, but it also claims that the jail sentence is a violation of the Eighth Amendment's cruel and unusual punishment provision. One additional challenge involves a prior juvenile conviction of Limon, which contributed to the length of the 17-year sentence.

The Limon case is one of two challenges involving a state sodomy law that the Supreme Court could opt to hear before next spring. Two homosexual Texas men who were caught having sex have asked the court to overturn a state sodomy law that bars such activity.

Like Limon, the Texas men claim they should be held to the same standard under the law as heterosexuals. Their case, Lawrence and Garner v. Texas, seeks to overturn the court's decision in Bowers v. Hardwick.

That, however, is unlikely to happen, predicted University of California at Los Angeles law professor Eugene Volokh. He said there has been little disagreement on the issue among state supreme courts and federal appellate courts, which gives the U.S. Supreme Court little incentive to take up the matter.

"Maybe, if the Supreme Court wanted to reverse the Bowers decision, it would accept the case," he said. "But I'm not sure there's that much sentiment on the court to revisit Bowers."

Volokh said he did not foresee either case having much of an impact, but he drew a distinction between the two. While the challenge to the Texas sodomy law is unlikely to reverse Bowers, Volokh said the Limon case has even less chance of overturning the Kansas law.

"If states have flexibility in deciding what is permitted for adults, it seems to me that they would, as a constitutional matter, have even more flexibility in what is permitted with children," he said.

But Lange said the issue comes down to fairness, something the Kansas law did not afford to Limon. She said it would be outlandish for a judge to sentence a homosexual teenager to a stiffer sentence than a heterosexual teenager if each robbed the same convenience store. If that is the case, she said, there is no reason to impose a tougher sentence on Limon for having had sex.

"It's really about having equal punishment for equal crimes," she said. "If you perform the same acts, you should have the same penalty."

The Supreme Court usually accepts about one percent of the petitions submitted. If the court agrees to hear either or both of the cases, they would likely be heard next spring.

E-mail a news tip to Robert B. Bluey.

Send a Letter to the Editor about this article.