U.S. Supreme Court will revisit the question of whether sodomy laws
should remain legal this term when it takes up the case of
and Garner v. Texas
. That case involves the arrest of two men
who were engaged in private, consensual sex when police, called
to their house by a nosy neighbor who wanted to see the men arrested
for having sex, filed a false report of a break-in. But another
sodomy case which the court has yet to say it will hear, raises
complicated questions about sodomy. If the Supreme Court were to
hear it and rule against the law in question, it would deal a decisive
blow against archaic sex laws in this country.
Matthew R. Limon v. th
e State of Kansas
sex between teenagers, one of whom is mentally retarded. In February
2000, Matthew Limon, then 18, was sentenced to 17 years and 2 months
in prison for performing oral sex on a 14-year-old male. Limon suffers
from a mild form of mental retardation; his diagnosis places his
mental capacity between “borderline intellectual functioning”
and “mild mental retardation.” The sexual encounter took
place at the Lakemary Center in Paola, Kansas, which is a residential
school for developmentally delayed children and where Limon had
been living since July 1999.
in mid-February, Limon engaged in oral sex with another male student—named
in the court papers only as MAR. MAR initially consented to the
sex, but then changed his mind. When he told Limon to stop, Limon
did so immediately. Although it remains unclear how the police became
involved in the case—presumably someone from the Lakemary Center
called them in—both Limon and MAR stated that the sex was consensual.
But that didn’t stop the Kansas state court from locking Limon
away for a huge chunk of his life.
how does a consensual blow-job between males—the older of whom
has the mental functioning of someone much younger—end with
a conviction under one of the harshest state sodomy laws still on
the books and a jail sentence of nearly two decades? How were the
courts able to hand down such a sentence, given that Kansas has
a “Romeo and Juliet law” designed to decriminalize sexual
activity between young people? Passed in 1998, that law covers young
people under the age of 19 who engage in consensual sexual activity
with teens between 14 and 16-years old.
that there may be developmental differences in the teen years, the
law also stipulates that the ages of the sexual partners be less
than four years apart. While the law does not legalize this sexual
behavior, it greatly reduces the penalties involved in punishing
it. When the interaction between Limon and MAR took place, Limon
was three years, one month, and a few days older than MAR.
unfortunately for Limon, Kansas’s Romeo and Juliet law is meant
to be taken literally. It applies only to Romeos and Juliets, not
to Romeos and Mercutios. It was explicitly written to exclude application
in cases involving same-sex activity. So Limon was tried as an adult
and charged with engaging in criminal sodomy with a minor. The Kansas
sodomy law was written in 1855 (when Kansas was still a territory),
but was revised in 1983 to exclude heterosexual activity.
court-appointed lawyer, David Estes, first argued that the Kansas
law is patently unfair given that such radically different standards
are applied to heterosexuals and homosexuals. Estes’s motion
was denied, and a district court eventually found Limon guilty because
he admitted to the sexual activity. Since he had previously been
found guilty of a sodomy charge (once again, a consensual encounter
with someone his own age) when he was 15, the judge sentenced him
to 17 years in jail. He was also required to undergo 5 years of
court supervision after his release and was to be classified as
a “sexual offender,” a categorization that will stay with
him the rest of his life and, depending upon changes in Kansas law,
could mean that his name and address would be publicly available—kept
on file at police departments or even listed on websites.
he or MAR had been female, Limon would have been charged under the
Romeo and Juliet law and received, at most, a sentence of 15 months.
It’s also entirely possible that if this had been a heterosexual
liaison instead of a homosexual one, the incident would never have
been brought to the attention of the police and would have been
dealt with as an internal management problem at the Lakemary Center.
As it stands now, Limon will not get out of prison until he is in
his mid 30s. Let’s face it, his sex-with- a-minor charge is
going to make prison a living hell: Limon will be a prime target
for prison assault, rape, and general persecution.
the American court system commits horrendous miscarriages of justice
on a daily basis, surely the obvious inequality of Matthew Limon’s
case should make it ripe for reversal on appeal. Well, not in Kansas.
On November 15, 2001, the appeal, brought by Estes and the American
Civil Liberties Union, was heard by a three-member panel of the
Kansas Court of Appeals. Estes and the ACLU’s argument was
simple: having two standards of justice, one for queers and one
for heterosexuals, was an obvious violation of the 14th Amendment,
which guarantees equal protection under the law. Limon’s lawyers
argued that Kansas’s Romeo and Juliet law, as it was written,
was unconstitutional and should be struck down and that Matthew
Limon’s 17-year sentence was a product of discrimination based
on sexual orientation.
February 20, 2002, the appeals court shocked gay rights and civil
liberties groups by upholding Limon’s conviction and declaring
that the state of Kansas has the right to make and enforce a law
that holds homosexuals and heterosexuals to different standards.
Their reasoning was based on the fact that the Kansas sodomy statute,
under which Limon was convicted, applied only to same-sex activity,
so there was a legal precedent for treating homosexuals differently.
But more importantly, they argued, the Kansas sodomy law was constitutional
because the U.S. Supreme Court had ruled, in the infamous
that the Constitution “does not confer a fundamental
right upon homosexuals to engage in sodomy.” Simply put, the
idea that homosexuals and heterosexuals should be treated equally
before the law was nonsense. By this time, Limon had already spent
nearly two years in the Ellsworth Correctional Facility.
after the Limon case first surfaced in the media, Kansas state representative
Mike O’Neal, chair of the Kansas House Judiciary Committee,
happily admitted in interviews that legislators, in refusing to
amend the state’s sodomy statute or the Romeo and Juliet law,
were upholding the state’s long-standing refusal to confer
approval on same-sex relationships. This commitment, O’Neal
told the Associated Press, was based on a very specific tradition:
“The history is really biblically based. Kansas has kind of
consistently gone back on that biblical reference.” (This is
no doubt the same thinking that led the state’s Board of Education,
in August 1999, to mandate that creationism be taught in its public
lawyers and the ACLU then appealed his case to the Kansas Supreme
Court. On June 13, 2002, the Court denied the appeal. Now the question
is whether the U.S. Supreme Court will elect to hear
R. Limon v. Kansas
. As with
Garner and Lawrence v. Texas
which involves a sodomy statute that applies only to homosexual
activity, the case is being argued on equal-protection grounds.
There is no doubt that both of these cases bring into focus the
immediate need for the Supreme Court to reverse its 1986
decision, a decision that has provided the secure
constitutional foundation for maintaining a national policy that
treats heterosexuals with more dignity and legal protection than
that afforded homosexuals.
Limon v. Kansas
is important for more reasons than these.
Although it embodies one of the most important issues in the contemporary
fight for gay rights— equality under the law—it touches
on a host of other, more moral issues as well: the right of gay
youth to have consensual sexual relationships, the right of the
mentally challenged to be treated with respect to their capabilities,
and the rights of gay people to be understood and accepted as sexual
this, it’s important to note that the case of Matthew Limon
stands in confusing juxtaposition with the case of another noted
Matthew: Matthew Shepard. In 1998, Matthew Shepard became a worldwide
symbol of the horror of anti-gay violence. Shepard—middle-class,
college-educated, intelligent and creative—was a perfect poster
child for the cause publicized by his terrible death. Shepard was
presented to the American public as an unadulterated victim. At
the time of his death and even during the trial of his murderers,
it was seen as inappropriate for the media to discuss his HIV status,
his possible sexual intentions in chatting up his eventual killers
in the bar that night, and his sexual history. Of course, there
was good reason for this: to avoid playing into the basest homophobic
(and sexist) stereotype that he “was asking for it.” But
the reality was that the image of Shepard as “innocent victim”
presented the public with a less-than-full portrait of his unique,
complex life as a young gay man.
Matthew Shepard was perceived, there’s no getting around the
fact that Matthew Limon makes people much more uncomfortable. Limon
was an 18-year-old having sex with a 14-year-old. Even under Kansas’s
Romeo and Juliet law that is illegal. Many Americans have problems
with queers who are “consenting adults,” never mind “consenting
teens.” If this weren’t enough, there is Matthew Limon’s
mental functioning to consider. For many, the idea of the mentally
retarded having sex, or even having the capacity to make sexual
decisions, is upsetting. In this regard, Limon is lucky that he
was prosecuted in 2001 and not 1964. Under a 1913 law (repealed
in 1965), officials of the state of the Kansas sterilized over 3,000
women and men who had been classified as “insane” or “retarded.”
At least 25 percent of them had been sterilized through castration.
the Limon case is about the right to have sex. Historically, the
American legal system has been able to address issues of sexual
freedom by ruling on subjects that are intimately connected to sex.
The breakthrough decision about birth control was
, which gave married couples the right to purchase
contraceptives (that they would use while having sex). The breakthrough
decision on interracial marriages was the appropriately named
, which gave interracial couples the right to marry
(and then have sex). The breakthrough decision on abortion was
, which gave women the right to choose whether or not
to carry an unexpected pregnancy to term (after having had sex).
The issue in Limon is: should gay teens as young as 14 be able to
have sex under the same legal conditions as heterosexual teens?
is easy to make laws and generate sympathy for cases that feature
unmessy situations. Even the facts of
Lawrence and Garner v.
play better in the American media because both defendants
are adults. But as much as Limon’s case is a harder sell, it
has the potential for a larger victory because it takes up a complicated
situation that raises complicated issues.
Bronski is the author of
Pulp Friction: Uncovering the
Golden Age of Gay Male Pulps