Mirror of Justice

Rick raises good questions (here and here) about the constitutional analysis in the Kansas decision striking down the differential "Romeo and Juliet" law.  It may be that something more than typical rational-basis scrutiny is going on in these cases.  I think, for example, that Romer v. Evans reflects a higher level of scrutiny, and that the Court was unconvincing in interpreting the Colorado constitutional amendment as reflecting nothing more than "animus" against homosexuals, rather than an attempt to protect the conscience of employers, landlords, etc. in Colorado.

But I would also say:

(1) Let's realize how truly severe, and morally unattractive, was the differential treatment in the Colorado [CORRECTION: Kansas] case.  Limon, who'd just turned 18 when he had oral sex (non-coerced, the record indicates) with the almost-15-year-old boy, was sentenced to 17 years in prison plus, among other things, registering thereafter as a sex offender (with the public notice, and sometimes harassment, that accompanies registration).  Had the oral sex been with a girl of the same age (and even a third offense as was the case with Limon), the maximum sentence would have been 13-15 months and no sex-offender registration.  This was perhaps one of the most severe differential applications of the statutory scheme, but a statutory scheme that can authorize that sort of differential certainly lends itself to an inference that the homosexual person himself is being treated as fundamentally and irredeemably flawed and worthy of dismissal.  The statute authorizes an "imprison them and throw away the key" attitude toward teenage gay sex while aiming consciously to protect teens engaged in opposite-sex acts based on the judgment that a sexual misstep, even a serious one, in their teenage years shouldn't be treated as irredeemable and destroy their lives.  And as our prison system stands now, a multi-year prison term running through one's 20s and 30s, even with possibility of parole in several years (Limon served more than four years, as I recall the facts, before this week's reversal), virtually guarantees the destruction of one's life -- it will be very hard to put it back together.  No wonder the attorney general has said he won't petition for cert.

(2) I agree that courts should be reluctant to find nothing but animus, and reluctant to dismiss other rationales as pretextual.  But to follow up on Michael's point, shouldn't there some point at which the severity of the differential and the weakness of other rationales for it raise an inference that the law is fundamentally dismissing the defendant as a person of worth and value?  I am cautious about such conclusions, because they can easily lead courts to call a moral point of view with which they disagree "animus" -- as is starting to happen with gay marriage.  Moreover, review of the proportionality of lengths of sentences is at best a tricky matter for constitutional analysis.  But does that mean a court can never identify a true case of dismissal of the dignity of the person whose conduct is bering criminalized? 

(3) To take it back to the policy issue ...  One thing that is especially harmful about differentials like this, in my view, is that their defenders end up having to argue, or reasonably appear to argue, that the opposite-sex behavior -- behavior that unquestionably contravenes traditional moral standards -- isn't really that much of a concern (in order to argue that it rationally can be treated as non-criminal, or as less serious than the same-sex behavior).  I realize that one can logically argue both that a certain category of opposite-sex behavior is bad and that same-sex behavior of the same category is worse.  But it's very hard to do this -- at least to justify punishing the same-sex behavior criminally and other not at all or far less severely -- without conveying the impression that the opposite-sex behavior isn't really that harmful.  I think, for example, of Professors Bradley and George arguing in an amicus brief in Lawrence v. Texas (on Westlaw, 2003 WL 470066, but I can't find it online) that a legislature could rationally vote to criminalize private consensual same-sex sodomy, but leave opposite-sex sodomy alone because the latter can occur in "potentially or incipently marital relationships" -- a category that, in their argument, extends as broadly as sodomy between "couples who are just beginning to date and who, if all goes well, will soon be considering marriage."  It seems to me that these two powerful defenders of the traditional, sex-within-marriage-only view found themselves stuck in the position of minimizing or appearing to minimize the problems of widespread premarital sex -- including sex on the first date, no less! -- or at least suggesting that one could reasonably view them as not big problems.  Traditionalists should not want to be put in this position, and they should be furious when legislators put them there.

Tom