Limon v. Kansas: Response to Rob

As Rob notes, the Kansas Supreme Court has invalidated the part of Kansas's "Romeo and Juliet" law that (quoting from the opinion) "results in a punishment for unlawful voluntary sexual conduct between members of the opposite sex that is less harsh than the punishment for the same conduct between members of the same sex."  Here is the ACLU's press release about the case.  Here is a release put out by Liberty Counsel, which defended the provision, after the lower Kansas court upheld it last year.

The Kansas Court's conclusion that "we are directed in our equal protection analysis by the United States Supreme Court's holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest" probably comes as no surprise.  Interestingly, the Court also writes, near the end of its opinion:

[T]he State's interests fail under the holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest. As Justice Scalia stated: "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." 539 U.S. at 599 (Scalia, J., dissenting).

Three quick thoughts:  First, should we worry about the Court's (in my view) unexamined equation of "disapproval of a group" with "disapproval of certain conduct"?  I would have thought that, at least in the context of Catholic thinking about this matter, a distinction between the two is important.  Second, do we really think that laws -- including coercive and penal laws -- should not and may not rest on "moral disapproval"?  Third, I think that Rob's conclusion that "[s]tatutory schemes like these lend credibility to critics' insistence that opposition to gay rights stems from nothing more noble than hatred of 'the other'" might be too hasty.  The Kansas Court's "rational basis" analysis notwithstanding, it seems to me that more than "hatred of 'the other'" might underly a view that homosexual conduct among teenagers is more of a concern to the public authority than heterosexual conduct among teenagers.  Now, to be clear, I'm not bothered, as a policy matter, by the result in this case (though I do regret the ongoing pretense that "rational basis" review is being applied in these cases).  But I'm reluctant to embrace too quickly the notion that morals legislation reflects hatred or unreason.

Rick