So, let's see: Kansas has decreed that evolution doesn't exist, they have a female state senator who doesn't believe that women should have the vote ... what else can they do? .... Oh, yes. They can sentence an eighteen-year-old developmentally disabled boy to 17 years in jail for having oral sex with another developmentally disabled youth.
If he were straight, he'd have been sentenced to only a year in jail, and given the circumstances, it's likely that it would have been suspended.
The problem is, Kansas has a criminal sodomy statute. Interestingly, as far as I can tell from the PlanetOut article and from the ACLU press release, it has not been invoked; otherwise, the older youth would be required to register as a criminal sexual offender. However, what it means is that the activity itself is criminally sanctioned independent of any equal protection challenge; if they get him out from this charge, it's quite likely that the hot-to-trot attorney general who brought the original charge will simply turn around and charge him with criminal sodomy. To be sure, it's only a six-months sentence, which is almost certainly why it wasn't invoked in the first place, but it is a separate charge proceeding from the event.
The fact that the criminal sodomy is in and of itself illegal in Kansas means that this case will receive a cold reception from the Kansas Supreme Court. In a previous case, they held, in their judicial wisdom, that: Homosexual sex is not intimate to the degree of being sacred and has no such foundation as marriage finds in Griswold. ... Homosexual sex has not been long recognized and is not necessary for existence and survival, once again preventing a comparison between marriage and homosexual conduct. Although there are additional fundamental rights, protected from government infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments, homosexual intimacy is not one of them. It cannot be said that homosexuality and homosexual conduct are like or to be treated the same as marriage which is a relation as old and as fundamental as our entire civilization. One might argue that under the totality of the constitutional scheme under which we live, liberty demands protection of a right of intimacy, regardless of heterosexual or homosexual intimacy. However, no state or federal courts have ever declared that homosexual sex requires the same protections as interracial marriage or contraceptive use, for example. ... A line can be drawn between protected private acts and public conduct, even though in this case it does not matter since neither are protected. The Kansas Supreme Court in this matter found that a city, pursuant to police power, has the right to promote morality and that the legislature is the proper body to address morality issues. ...
To put it in a nutshell: Kansas' legislature and court believe that homosexuals and homosexual conduct do not warrant equal protection under the United States Constitution, and certainly not under the Kansas Constitution.
Purely as an aside, I find it ... amusing that the Kansas Supreme Court holds that marriage is as old as our civilization, but that homosexuality and homosexual conduct are not. This would come as a terrible surprise to the Leviticus quoting biblethumpers -- which, clearly, would include the members of the Kansas Supreme Court -- since Leviticus itself predates our American civilization. (Mind, not a terribly helpful comparison.) If nothing else, people who have intimate relations with members of their own sex have certainly been around for more than 235 years.
Copyright © 2001, Iain Jackson, after-words.org
[Archives: 2001 and after]
Archives before February 5, 2001
Search entries:
12/19/2001: vive la france
12/19/2001: princess, redux
12/19/2001: yemen and rumsfeld
12/18/2001: you're NOT in the army now
12/18/2001: interesting donation
12/18/2001: shame on winn dixie, indeed
12/18/2001: saudi princess
12/17/2001: new resolve
12/17/2001: a victim of the attack ... yeah, right
12/17/2001: polluters ho!