The Lawrence majority opinion expressly made approving noises (while not technically relying on, so it is technically dicta) about the plaintiffs' equal protection attack on the Texas law. Kennedy approvingly stated that was a "plausible" ground to strike down the Texas law. While the Texas law, unlike Kansas's, banned all gay "sodomy," the relevant point is that it treated the same sexual act differently based solely on the sexes of the participants. The Kansas law also does that, and imposes far harsher penalties than did Texas on the disfavored same-sex sexual partner, to boot. All Kennedy meant by saying that Lawrence did not involve minors was exactly that: that Lawrence did not involve minors. That in no way precludes applying Lawrence's logic, as precedent, to some other case (not the subject of Kennedy's Lawrence opinion) that *does* involve minors.
Furthermore, the Kansas law is highly questionable under the pre-existing Romer precedent. Since Lawrence has at least marginally (I would say greatly) clarified Romer's status as precedent (greatly strengthening it by removing the puzzling and unresolved tension with Bowers, which was premised on Georgia's avowedly anti-gay enforcement of its facially neutral "sodomy" law), it makes sense for the US Supreme Court to let the Kansas court sort out, in the first instance, how Romer/Lawrence now apply. I don't think Lawrence logically undermines statutory-rape laws in any general or substantive sense, but the combination of Romer and Lawrence surely undermine blatantly discriminatory statutory rape laws like Kansas's. As I put it colloquially to a lawprof friend at dinner just last night, Lawrence has converted Romer into Romer-on-steroids. Quite obviously, the Kansas courts on remand should apply Romer and Lawrence and strike down Limon's obscenely cruel and unjust sentence. Bryan Wildenthal Thomas Jefferson School of Law -----Original Message----- From: Andrew Koppelman [mailto:[EMAIL PROTECTED] Sent: Friday, July 11, 2003 11:52 AM To: [EMAIL PROTECTED] Subject: A Lawrence puzzle 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] ________________________________________
