Andy's right, the Limon remand is odd. The Lawrence majority opinion
clearly does not extend sexual privacy to minors. The Limon case is thus
outside the privacy holding in Lawrence. It might also be outside Lawrence
for other reasons, such as the location of the sexual activity. (I need
more facts, and haven't been able to locate a published opinion in Limon on
LEXIS.)
Is it possible that the Court intended for the Kansas courts to reconsider
Limon in view of O'Connor concurrence in Lawrence? Her opinion on Equal
Protection *would* be relevant to the constitutionality of the distinction
that the Kansas "Romeo and Juliet" law draws between teenage underage sex
between opposite sex and same sex couples. Is the Limon remand a signal
that, although I don't think the Lawrence opinion says so explicitly, the
five person majority in Lawrence would if put to it endorse and apply
O'Connor's Equal Protection argument?
Marc R. Poirier
Professor of Law
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102
973-642-8478
Andrew Koppelman
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Sent by: Discussion Subject: A Lawrence puzzle
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Matthew Limon, a mentally retarded man, had just turned 18 when he had oral
sex with a boy who was a few weeks short of 15. Had the encounter been
heterosexual, the penalty for this statutory rape would have been fairly
mild. Kansas's "Romeo and Juliet law" greatly reduces the penalties for
young people under 19 who engage in consensual sexual activity with
teenagers between 14 and 16. Had that law applied, Limon would have
received, at most, a sentence of 15 months. However, because the "Romeo
and Juliet" law expressly excludes homosexual activity, Limon was sentenced
to 17 years in jail, five years of court supervision after his release, and
to be classified as a "sexual offender" for the rest of his life.
The U.S. Supreme Court vacated Limon's conviction and remanded the
case for reconsideration the day after it decided Lawrence v. Texas, in
which it invalidated Texas's sodomy law. The Court indicated that the
Limon case should be given "further consideration in light of Lawrence,"
2003 WL 21472762, but did not explain further.
The relevance of the Lawrence case is not immediately
obvious. The law struck down in Lawrence criminalized all homosexual
sex. The Court struck it down as an improper infringement on personal
liberty. The Court also emphasized, however, that "[t]he petitioners were
adults at the time of the alleged offense," and it later emphasized that
"[t]he present case does not involve minors." (The Court obviously did not
intend to call into question the constitutionality of statutory rape
laws.) The Court did not hold that there was anything per se wrong with
classifications on the basis of sexual orientation. (That would have
implied that the U.S. military's exclusion of gays was constitutionally
problematic.) Nor did the Court hold that discrimination against gay
people was an impermissible form of sex discrimination. (That would have
implied the legality of same-sex marriage.)
So here's the puzzle. Just what principle does Lawrence stand for
that was violated by the state in Limon? What ought the Kansas courts to
do on remand, and why?
________________________________________
Andrew Koppelman
Professor of Law and Political Science
George C. Dix Professor of Constitutional Law, 2002-03
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL 60611-3069
(312) 503-8431
mailto:[EMAIL PROTECTED]
________________________________________
