[news] Do You Bite Your Thumb at Scalia, Kansas?

Kansas's Supreme Court ruled that the state's "Romeo and Juliet" law can't be limited only to opposite-sex couples. Justice Marla Luckert stuck to Lawrence, saying, "Moral disapproval of a group cannot be a legitimate state interest."

When the Romeo and Juliet statute applies, prison terms are shorter and other consequences, such as postrelease supervision periods and sex offender registration requirements, are less harsh than when general rape, sodomy, and lewd touching statutes apply. Because these disparities are based upon the homosexual nature of Limon's conduct, he argues the Romeo and Juliet statute creates a classification which violates the equal protection principles announced by the United States Supreme Court. Limon suggests we apply a strict level of scrutiny when reviewing his claim, but asserts that even if the rational basis test applies, under the guidance of Lawrence, the classification bears no rational relationship to legitimate State interests.

We agree that the United States Supreme Court's decision in Lawrence controls our analysis and, when considered in conjunction with several equal protection decisions of the United States Supreme Court, requires us to hold that the State does not have a rational basis for the statutory classification created in the Romeo and Juliet statute.

This opinion is interesting because it's an Equal Protection analysis (as opposed to the Due Process reasoning in Lawrence). Quoting Scalia's dissent from Lawrence, the Kansas court says, "If, as the [United States Supreme] Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest," the statute cannot "survive rational-basis review." Much to Scalia's chagrin (I suspect), this court agrees.

(link to opinion)

(link to article)