Battle lines drawn after Kansas gay-sex ruling

By Ros Krasny

CHICAGO (Reuters) – Gay activists applauded a Kansas Supreme Court decision throwing out a measure that allowed vastly harsher punishment for older teenagers who have consensual sex with underage teens of the same gender.

But conservatives cast the ruling as a victory for supporters of a creeping gay-rights agenda.

"This is legislating from the bench that does not reflect the rule of the citizenry," Jerry Johnston, pastor of the First Family Church in Overland Park, Kansas, told Reuters on Saturday.

The state’s top court ruled 6-0 on Friday that different penalties for underage homosexual and heterosexual sex violate the U.S. Constitution’s clause barring states from denying people equal protection of the laws.

Matthew Limon has served more than five years of a 17-year prison sentence for criminal sodomy after performing a consensual oral sex act on a 14-year-old boy in 2000, when he was 18.

Had the boy been a girl, Limon would have faced a maximum of just 15 months behind bars under a so-called "Romeo and Juliet" law that allows lighter punishment for teenagers 18 or younger who have sex with 14- and 15-year-olds of the opposite sex.

It is illegal to have sex with anyone under age 16 in Kansas.

‘MORAL DISAPPROVAL’

A lower court had ruled that the state could justify the harsher punishment for gay sex as a way of fighting disease or strengthening traditional values.

"The only reason for writing into law different penalties for different people is that some people disapprove of gay sex," said Matt Coles, director of the American Civil Liberties Union’s Lesbian and Gay Rights Project, which handled Limon’s appeal.

Kansas Justice Marla Luckert wrote in the ruling that "moral disapproval of a group cannot be a legitimate governmental interest."

The losing attorney, Kansas Attorney General Phill Kline, said he had no plans to appeal the U.S. Supreme Court.

The court found the Kansas statute violated the U.S. Supreme Court’s 2003 ruling, Lawrence vs. Texas, that overturned state sodomy laws making it a crime for gays to have consensual sex in their own bedrooms.

It was the first time the Lawrence case, seen as a milestone for gay rights, has been translated into a favorable ruling in the lower courts.

Kansas Rep. Lance Kinzer, a Republican, said he feared the ruling could be used as a basis to challenge the ban on same-sex marriage passed in Kansas in April.

"If I was a proponent of same-sex marriage in Kansas, I would be extremely encouraged," Kinzer said.

Limon, who suffers from a mild form of mental retardation, was a student at a state residential school for developmentally disabled youth in 2000. That year, he was convicted of having oral sex with a fellow student who was one month short of his 15th birthday.

The ACLU said it hoped to quickly obtain Limon’s release.

"He has long since paid his debt to society, and we’re thrilled that he will be going home to his family soon," said Lisa Brunner of the ACLU.