No. 00-85898-S

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IN THE SUPREME COURT OF THE STATE OF KANSAS

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STATE OF KANSAS Plaintiff-Appellee

v.

MATTHEW R. LIMON Defendant-Appellant

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DEFENDANT-APPELLANT’S SUPPLEMENTAL BRIEF ON REVIEW

______On Review from the Court of Appeals of the State of Kansas Memorandum Opinion No. 85,898 District Court Case No. 00 CR 36 District Court of Miami County, Kansas Honorable Richard M. Smith

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Paige A. Nichols, Kansas Bar No. #16400 Attorney at Law P.O. Box 582 Lawrence, KS 66044 (785) 832-8024 Attorney for Appellant Matthew Limon TABLE OF CONTENTS

I. INTRODUCTION ...... 1

II. ARGUMENT ...... 1

A. EQUAL PROTECTION ...... 1

Lawrence v. Texas, 123 S.Ct. 2472 (2003) ...... 1 Ashwander v. T.V.A., 297 U.S. 288 (1935) ...... 2 Hooper v. Bernalillo, 472 U.S. 612 (1985) ...... 2

1. The Romeo & Juliet Exclusion Fails ....3

Romer v. Evans, 517 U.S. 620 (1996) ...... 3, 4, 5 McLaughlin v. Florida, 379 U.S. 184 (1964) ...... 3 Heller v. Doe, 509 U.S. 312 (1993) ...... 3 Nordlinger v. Hahn, 505 U.S. 1 (1992) ...... 4 Allegheny Pittsburgh Coal Co. v. Webster County, 488 U.S. 336 (1989) ...... 4 Lawrence v. Texas, 123 S.Ct. 2472 (2003) ...... 4 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ...... 4 U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ...... 4

a. Moral Disapproval of a Class of People Is Not a Legitimate State Interest ...... 5

Lawrence v. Texas, 123 S.Ct. 2472 (2003) ...... 6, 7, 8 Romer v. Evans, 517 U.S. 620 (1996) ...... 6, 8 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ...... 6 U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973) ....7 Bowers v. Hardwick, 478 U.S. 186 (1986) ...... 8 Frontiero v. Richardson, 411 U.S. 677 (1973) ...... 8

b. Excluding Gay Teenagers from the Romeo & Juliet Law Does Not Rationally Further The State’s Interest in Preventing the Spread of Sexually Transmitted Diseases . 8

i Romer v. Evans, 517 U.S. 620 (1996) ...... 8, 9, 10 Eisenstadt v. Baird, 405 U.S. 438 (1972) ...... 9 Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) ...... 9 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ...... 9, 10 Lawrence v. Texas, 2003 WL 164135 (Jan. 16, 2003), Brief of the American Public Health Association, et al. In Support of Petitioners ...... 10 Gryczan v. State, 942 P.2d 112 (Mont. 1997) ...... 10 Commonwealth v. Wasson, 842 S.W.2d 487, 501 (Ky. 1992) ...... 11 Lawrence v. Texas, 123 S.Ct. 2472 (2003) ...... 11

c. Excluding Gay Teenagers Does Not Rationally Further the Asserted Interest In Encouraging Parental Responsibility ...... 11

K.S.A. 21-3522 ...... 12 K.S.A. 21-3505 ...... 12

2. The Romeo & Juliet Exclusion Fails Heightened Scrutiny .....12

a. The Exclusion Punishes Matthew More Harshly Because of His Sex ...... 12

Loving v. Virginia, 388 U.S. 1 (1967) ...... 13, 14 Califano v. Westcott, 443 U.S. 76 (1979) ...... 13, 14 Washington v. Davis, 426 U.S. 229 (1976) ...... 13 Shaw v. Reno, 509 U.S. 630 (1993) ...... 13 Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) ...... 14 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) ...14 United States v. Virginia, 518 U.S. 515 (1996) ...... 14

b. The Exclusion Differentially Burdens the Exercise of a Fundamental Right ...... 14

Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) ...... 15, 16 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) ...... 15, 19 Shapiro v. Thompson, 394 U.S. 618 (1969) ...... 15 Speiser v. Randall, 357 U.S. 513 (1958) ...... 15 Memorial Hospital v. Maricopa Cty., 415 U.S. 250 (1974) ...... 15 Lawrence v. Texas, 123 S.Ct. 2472 (2003) .....16, 17, 18

ii Griswold v. Connecticut, 381 U.S. 479 (1965) ...... 17 Eisenstadt v. Baird, 405 U.S. 438 (1972) ...... 17 Roe v. Wade, 410 U.S. 113 (1973) ...... 17, 18 Carey v. Population Services Int’l, 431 U.S. 678 (1977) ...... 17 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) ...... 17 Romer v. Evans, 517 U.S. 620 (1996) ...... 17 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ...... 18

3. Classifications Based on Sexual Orientation Are Suspect ...... 19

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) ...... 19, 21, 22, 23 Romer v. Evans, 517 U.S. 620 (1996) ...... 19 Lawrence v. Texas, 123 S.Ct. 2472 (2003) ...... 19 Plyler v. Doe, 457 U.S. 202 (1982) ...... 20 Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) ...... 20, 21, 23 High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (1990) ...... 20 Ben Shalom v. Marsh, 881 F. 2d 454 (7th Cir. 1989) ...... 20 Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) ...... 20 Rowland v. Mad River Sch. Dist., 470 U.S. 1009 (1985) ...20, 22 Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 VA. L. REV. 1551, 1565 (1993) ...... 20 Tracey Rich, Sexual Orientation Discrimination in the Wake of Bowers v. Hardwick, 22 GA. L. REV. 773 (1988) ....20 The Kaiser Family Foundation, Inside-OUT (Nov. 2001) (http://www.kff.org/kaiserpolls/loader.cfm?url=/ commonspot/security/getfile.cfm&PageID=13874 .....20 Miguel v. Guess, 51 P.3d 89 (Wash. App. 2002) ...... 21 Quinn v. Nassau County Police Dept., 53 F. Supp. 2d 347 (E.D.N.Y. 1999) ...... 21 Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279 (D. Utah 1998) ...... 21 DeSantis v. Pacific Tel., 608 F.2d 327 (9th Cir. 1979) ...... 21 Ex parte H.H., 830 So.2d 21 (Ala. 2002) ...... 21 Weigand v. Houghton, 730 So. 2d 581 (Miss. 1999) ...... 21 Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995) ...... 21 Lyng v. Castillo, 477 U.S. 635 (1986) ...... 21, 23 American Psychiatric Association, Fact Sheet: Gay, Lesbian and Bisexual Issues (May 2000) (http://www.psych. org/public_info/gaylesbianbisexualissues22701. pdf) ...... 21, 23

iii Carole Jenny, et al., Are Children at Risk of Sexual Abuse by Homosexuals?, 94 PEDIATRICS 44 (1994) ...... 21 John Boswell, CHRISTIANITY, SOCIAL TOLERANCE AND HOMOSEXUALITY at 16 (1981) ...... 21 Ellen C. Perrin, M.D. & Committee on Psychosocial Aspects of Child and Family Health, American Academy of Pediatrics, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 PEDIATRICS 341 (Feb. 2002) (http://aappolicy. aappublications.org/cgi/reprint/pediatrics;109/2/341. pdf) ...... 22 Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) ...... 22 Reitman v. Mulkey, 387 U.S. 369 (1967) ...... 22 Hunter v. Erikson, 393 U.S. 385 (1969) ...... 22 San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ...23 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000)...... 23 U.S. Surgeon General, The Surgeon General’s Call to Action (July 9, 2001) (http://www.surgeongeneral.gov/ library/sexualhealth/call.htm) ...... 23

B. Cruel and Unusual Punishment ...... 23

Atkins v. Virginia, 536 U.S. 304 (2002) ...... 24 Robinson v. California, 370 U.S. 660 (1962) ...... 24 State v. Clemons, 273 Kan. 328 (2002) ...... 24

C. Improper Use of Juvenile Adjudications under Apprendi and Gould ...25

Apprendi v. New Jersey, 530 U.S. 466 (2000) ...... 25 State v. Gould, 271 Kan. 394 (2001) ...... 25 State v. Hitt, 273 Kan. 224 (2002) ...... 25 State v. Brown, 853 So. 2d 8 (La. Ct. App. 2003) ...... 25 Brian P. Thill, Comment: Prior “Convictions” under Apprendi: Why Juvenile Adjudications May Not Be Used to Increase an Offender’s Sentence Exposure If They Have Not First Been Proven to a Jury Beyond a Reasonable Doubt, 87 MARQ. L. REV. 573 (2004) ...... 25

III. CONCLUSION ...... 25

iv I. INTRODUCTION

One week after his 18th birthday, Matthew Limon performed consensual oral sex on a younger male teenager. As a result, Matthew was convicted for criminal sodomy under K.S.A. 21-3505(a)(2), sentenced to over 17 years in prison and five years of post- release supervision, and ordered to register as a sex offender. Had Matthew or the other teenager been a girl, the State would have been required to charge him with unlawful voluntary sexual relations under K.S.A. 21-3522, the “Romeo & Juliet” law, and his maximum sentence would have been 15 months, with no registration requirement. See

State v. Williams, 250 Kan. 730 (1992). Whether such striking differences in punishment can constitutionally be based on an offender’s sexual orientation or sex is the central question presented here.

Matthew respectfully submits this supplemental brief, not to repeat his previous arguments, but to clarify some of those arguments in light of questions raised during oral argument before the Court of Appeals and in the Court of Appeals’ decision. Matthew respectfully prays that this Court reverse his conviction and sentence with instructions that the State initiate any proceedings under the Romeo & Juliet law within 30 days.1

II. ARGUMENT

A. EQUAL PROTECTION

The Court of Appeals misunderstood the relevance of the Supreme Court’s decision in Lawrence v. Texas, 123 S.Ct. 2472 (2003), and, as a result, misapplied well- established equal protection principles. Proper application of those principles mandates

1 Matthew seeks review of the second Court of Appeals decision. The original decision of the Court of Appeals was decided by a different panel and, because it was vacated by the United States Supreme Court, is no longer the law of the case.

1 reversal of Matthew’s conviction and sentence.2 Matthew respectfully submits that in order to avoid resolving constitutional questions not necessary to a decision in his favor,3 the equal protection analysis should proceed in the following order:

1. The Court should determine whether punishing gay teenagers more severely than heterosexual teenagers who engage in the very same consensual sexual activity rationally advances an independent and legitimate governmental interest. Appellant’s Opening Brief on Rehearing at 14-22.

2. If the Court concludes that there is a rational basis for discriminating based on sexual orientation, then the Court will need to consider Matthew’s claims, based on two other bodies of established equal protection law, that the Romeo & Juliet law must satisfy heightened equal protection scrutiny both because:

a. Punishing Matthew more severely than if he had been a girl performing the same sexual act with the same younger teenager means classifying him based on his sex. To satisfy equal protection, the State must show that it has an exceedingly persuasive justification for imposing different punishments based on the sex of the offender, and that the discrimination is substantially related to an important state interest. Id. at 29-32.

b. Punishing gay teenagers more severely than heterosexual teenagers for engaging in the same private, consensual sexual activity unequally burdens their exercise of the fundamental liberty interest identified in Lawrence: the right to make personal decisions about intimate sexual activity. Matthew does not assert a due process argument here; indeed, he agrees that the State’s interest in protecting children justifies imposing the criminal penalties of the Romeo & Juliet law on all teenagers even though those penalties burden the fundamental liberty interest. But because a fundamental right is at stake, the unequal burden on gay teenagers is subject to heightened scrutiny under the . Id. at 17 n.4.

3. Only if the Court finds a rational basis for the State’s discrimination based on sexual orientation and rejects both Matthew’s sex discrimination claim and his challenge to the unequal burden on the exercise of a fundamental right will it be

2 See Appellant’s Opening Brief on Rehearing at 33-37 (discussing proper remedy).

3 It is a long-established principle of judicial restraint that courts should not decide constitutional questions not necessary to resolve a given case. Ashwander v. T.V.A., 297 U.S. 288, 347 (1935) (Brandeis, J., concurring); Hooper v. Bernalillo, 472 U.S. 612, 618 (1985).

2 necessary to resolve the one novel question of constitutional law presented here: whether heightened scrutiny of the sexual orientation classification is required because sexual orientation is a suspect or quasi-suspect classification that triggers heightened scrutiny. Id; Appellant’s Brief (Original) at 12-29.

Discussion of these equal protection arguments is set forth below in this same order.

1. The Romeo & Juliet Exclusion Fails Rational Basis Review

Kansas subjects gay teenagers to harsher penalties not because they engage in different conduct but because they engage in that conduct with members of the same sex.

That difference in treatment violates the Equal Protection Clause even under the most lenient form of equal protection review – the rational basis test. Under rational basis review, the court seeks to find “the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause.” Romer v. Evans, 517 U.S. 620, 632 (1996).

“By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, [courts] ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law,” id. at 633, which would violate equal protection, id. at 635. Where, as here, a law imposes a criminal penalty, courts should be especially careful in determining whether a classification comports with equal protection. McLaughlin v. Florida, 379 U.S. 184, 192 (1964).

Whether there is a rational basis for discrimination is not decided in a theoretical vacuum. Heller v. Doe, 509 U.S. 312, 321 (1993) (“[E]ven the standard of rationality . . . must find some footing in the realities of the subject addressed by the legislation.”).

There must be a “factual context” from which to discern a relationship between the classification and a legitimate state interest. Romer, 517 U.S. at 635. Even systems for taxing property, which are judged under an “especially deferential” form of rational basis

3 review, Nordlinger v. Hahn, 505 U.S. 1, 11 (1992), must be rational in reality and not just in theory, Allegheny Pittsburgh Coal Co. v. Webster County, 488 U.S. 336, 343 (1989).

Where the factual reality makes asserted state interests “impossible to credit,” the only option is to conclude that the actual motive was a desire to disadvantage the targeted group, an impermissible basis for state action. Romer, 517 U.S. at 633, 635.

The Supreme Court’s decision in Lawrence reaffirmed these basic equal protection principles. In reversing the decision of the Texas Court, which had concluded that Romer applied only to cases involving discrimination in the political process,

Lawrence was careful to describe Romer as having struck down “class-based legislation directed at homosexuals.” 123 S.Ct. at 2482. The Lawrence majority was also careful to point out that Romer invalidated a law that discriminated based on same-sex sexual conduct, not only based on same-sex sexual orientation. Id. (noting that Romer applies to all legislation aimed at the “solitary class [of] persons who [are] homosexuals, lesbians, or bisexual either by ‘orientation, conduct, practices or relationships.’”) (quoting Romer,

517 U.S. at 624) (emphasis added). Justice O’Connor likewise invoked these basic equal protection standards to conclude, based on Romer, 517 U.S. at 632, City of Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432, 448 (1985), and U.S. Dep’t of Agric. v.

Moreno, 413 U.S. 528, 534 (1973), that the sexual orientation classification in Texas’s sodomy law was not rationally related to any legitimate government purpose. Romer, 123

S. Ct. at 2485, 2488.4

4 The Court of Appeals concluded that Lawrence is “factually and legally distinguishable” from this case. Opinion at 8, 31. But the legal distinction relied upon - that Lawrence interprets the while Matthew’s claims are based on the Equal Protection Clause - misses a key point established in Lawrence: that “equality of treatment and the due process right to demand respect for conduct protected by the

4 Restricting the Romeo & Juliet law to “members of the opposite sex” subjects teenagers who engage in consensual sexual conduct with members of the same sex to harsher penalties than those faced by teenagers who engage in the same conduct with members of the opposite sex. The question here is whether classifying teenage offenders based on whether they are “homosexual, lesbian, or bisexual either by ‘orientation, conduct, practices or relationships’” rationally advances a legislative purpose that is both independent and legitimate. Id. at 2482 (quoting Romer, 517 U.S. at 624).5

a. Moral Disapproval of a Class of People Is Not a Legitimate State Interest

In what the Court of Appeals characterized as a majority opinion, Judge Green concluded that punishing gay teenagers more harshly advances the State’s interest in

“preserv[ing] the traditional sexual mores of society,” Opinion at 15, by protecting children from “voluntary sexual behavior . . . which deviates from traditional sexual mores,” id. at 16, and by promoting marriage and procreation, id. at 17 (concluding that

substantive guarantee of liberty are linked in important respects[.]” 123 S. Ct. at 2482. In explaining that link, the Court said that relying on the due process right to liberty to strike down a statute that made sex a crime for same-sex couples but not for opposite-sex couples “advances both [equal protection and due process] interests.” Id. The Court then went on to explain that it ultimately rested its ruling on due process grounds not because there were problems with the equal protection theory but because a decision on equal protection grounds would not have gone far enough to remedy the discriminatory effects of sodomy laws. Id. Because the due process analysis in Lawrence advanced that interest in equal treatment, it remains very much on point in this equal protection challenge to a similar statute. It is true that one of the teenagers in this case was a minor, and it is far from clear that Lawrence would have any application to a case that challenged classifications based on age. But Matthew is not challenging the way Kansas law classifies on the basis of age. He is challenging the way Kansas law classifies on the basis of sexual orientation. That is precisely the sort of classification that was challenged in Lawrence.

5 For that reason, it is immaterial whether Matthew or M.A.R. identify themselves as gay. All that matters is that the State classified the punishment for their activity based on the fact that they were “homosexual . . . by conduct.” Romer, 517 U.S. at 624.

5 “traditional sexual mores concerning marriage and procreation have been important to the very survival of the human race”).6 But it is not Matthew’s “voluntary sexual behavior” that makes the difference here; the Romeo & Juliet law and the criminal sodomy law prohibit the very same conduct. The only difference, for purposes of this case, is that the

Romeo & Juliet law imposes minimal penalties on teenagers who engage in that conduct with members of the opposite sex, while the criminal sodomy law imposes harsh penalties on teenagers who engage in that conduct with members of the same sex. In other words, Judge Green’s focus on preserving traditional sexual mores has nothing to do with punishing specific conduct and everything to do with punishing a specific group of people - gay teenagers - when they engage in sexual conduct that is prohibited for all teenagers. Thus, Judge Green’s reasoning is based entirely on the premise that the state’s moral disapproval of gay teenagers is a legitimate justification for discrimination. After

Romer and Lawrence, that argument is fatally flawed.

Supreme Court equal protection cases going back 30 years have held repeatedly that the government’s mere disapproval of a particular group of people cannot justify a classification that disadvantages members of the group. See Romer, 517 U.S. at 633-35

(constitutional amendment adopted “for the purpose of disadvantaging the group burdened by the law” fails rational basis review); Cleburne, 473 U.S. at 448 (zoning law

6 Despite listing “marriage and procreation” as one of the interests rationally furthered by the exclusion in the Romeo & Juliet law, Judge Green never actually offers any explanation for how the exclusion furthers such an interest. Opinion at 17. As Judge Pierron observed in dissent, “encouraging marriage and human procreation[] are very odd justifications for having much greater criminal penalties for a male performing oral sodomy on a minor than for a female performing the same act on the same minor . . . . it is incomprehensible that this law has anything to do with encouraging marriage and procreation between the victim and the assailant.” Id. at 48.

6 based on “negative attitude” toward disabled people fails rational basis review); Moreno,

413 U.S. at 534 (benefits law based on political opposition to hippies failed rational basis review). As the Supreme Court put it in Moreno, “if the constitutional conception of

‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. (emphasis in original).

In Lawrence, Texas tried to justify its sodomy law by asserting that it advanced the state’s interest in expressing and enforcing its moral disapproval of homosexuality.

123 S. Ct. at 2486 (O’Connor, J., concurring). The Court acknowledged that “powerful voices condemn homosexual conduct as immoral” based on deeply held moral principles, religious beliefs and “respect for the traditional family,” but said those observations did not answer the question posed: “whether the majority may use the power of the State to enforce these views on the whole society through the operation of the criminal law.” Id. at 2480 (majority op.). The Court explicitly ruled that it may not, holding that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” id. at

2483 (majority, adopting and applying analysis from Justice Stevens’ dissenting opinion in Bowers v. Hardwick, 478 U.S. 186 (1986)); id. at 2486-87 (O’Connor, J., concurring).

Lawrence clarifies that moral disapproval of homosexuality is not - and has never been - a “legitimate state interest” for purposes of the Due Process Clause. Id. at 2484.

As Justice O’Connor discusses at some length, this is true under the Equal Protection

Clause as well. Id. at 2486. Consequently, “[a] law branding one class of persons as criminal solely based on the State’s moral disapproval of that class and the conduct

7 associated with that class” violates equal protection “under any standard of review.” Id. at 2488. Addressing this same point in his dissent in Bowers, Justice Stevens likewise concluded that “[a] policy of selective application [of a criminal law to gay people] must be supported by a neutral and legitimate interest – something more substantial than a habitual dislike for, or ignorance about, the disfavored group.” Bowers, 478 U.S. at 219.

The Supreme Court’s decisions in Romer and Lawrence establish conclusively that whether the State relies on moral disapproval or traditional sexual mores or habitual dislike, such negative attitudes toward gay people do not constitute the sort of “neutral and legitimate interest” necessary to satisfy the rational basis test. Id.7 b. Excluding Gay Teenagers from the Romeo & Juliet Law Does Not Rationally Further The State’s Interest in Preventing the Spread of Sexually Transmitted Diseases

Both Judge Malone and Judge Green accepted the State’s claim that the exclusion in the Romeo & Juliet law rationally furthers the state’s interest in “reduc[ing] the spread of sexually transmitted diseases.” Opinion at 19, 34. But excluding gay teenagers from the lesser penalties of the Romeo & Juliet law is so far removed from any rational means of preventing disease that this claim is “impossible to credit.” Romer, 517 U.S. at 635.

Finding the connection between “the classification adopted and the object to be attained” is what “gives substance to the Equal Protection Clause.” Id. at 632. Even under rational basis review, the challenged classification must advance the proffered state

7 Judge Green’s analogy to the contrary reveals the error in his analysis: the assertion that “[s]exual classifications . . . have been upheld where their purpose was to protect the morals of women,” Opinion at 14, is more than 30 years out of date. Such paternalistic rationales for sex discrimination have long been rejected. See, e.g., Frontiero v. Richardson, 411 U.S. 677, 684 (1973).

8 interest in a rational manner.8 For example, in Romer, Colorado had amended its state constitution to deprive gay people of protection under state anti-discrimination laws. Id.

Colorado defended the ban by asserting that it rationally furthered state interests in protecting religious liberties of landlords and employers and in conserving resources to fight discrimination. Id. at 635. But Colorado could not explain why it choose to ban only laws prohibiting sexual orientation discrimination, or why it prohibited all protection from discrimination to accommodate a few employers and landlords. The Court held that the law was “so far removed” from the asserted purposes that it did not rationally advance them, and indeed was “so discontinuous with the reasons offered for it [that it] seem[ed] inexplicable by anything but animus.” Id. at 632, 635. As a result, the Court found the amendment “lack[ed] a rational relationship to legitimate state interests.” Id. at 632; see also Cleburne, 473 U.S. at 446.

Excluding gay teenagers from the lesser penalties in the Romeo & Juliet law is similarly “so far removed” from and so “discontinuous” with the asserted purpose of preventing the spread of disease that the asserted interest cannot be credited. For the justification accepted by the Court of Appeals to be rational, it would have to be possible to think that, in general, the prohibited sexual activities are more likely to transmit disease when engaged in by members of the same sex than by members of the opposite sex. But

8 These principles apply with equal force in the public heath context. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 450-52 (1972) (noting that a “statute’s superficial earmarks as a health measure” will not satisfy “rational basis” review if it is so overly broad as to proscribe conduct wholly unrelated to the purported public health purpose); Craigmiles v. Giles, 312 F.3d 220, 226 (6th Cir. 2002) (invalidating law that forbade selling burial caskets without a license because, “[e]ven if casket selection has an effect on public health and safety, restricting the retailing of caskets to licensed funeral directors bears no rational relationship to managing that effect”).

9 it is impossible to square that idea with public health realities.

Sexually transmitted diseases, including HIV, may be transmitted by an infected person during vaginal or anal intercourse without a condom, and perhaps to a receptive partner during oral sex without a condom, regardless of the sex of the partners. But the exclusion of gay teenagers from the lesser penalties of the Romeo & Juliet law is not aimed at those practices. Instead, the exclusion means that sex between two girls who are

14 or 15 is punished severely, despite the fact that such contact presents the lowest possible risk of HIV transmission.9 Conversely, unprotected vaginal intercourse between an HIV-positive 18 year-old boy and a 14-year-old girl, which is far more likely to transmit disease, nevertheless qualifies for the lesser penalty. And, in this case, despite the fact that very few diseases are transmitted through oral sex, that HIV transmission by a receptive partner is virtually impossible, and that Matthew was no more likely than a girl to transmit any disease by performing oral sex, Matthew received 17 years in prison instead of a maximum of 15 months.

In sum, the disparity between the contours of the law and the way HIV and other

STDs are transmitted renders the exclusion in the Romeo & Juliet law an irrational means of serving this purported public health goal. Because of this striking lack of a “link” between classification and objective, the law has no rational basis. Romer, 517 U.S. at

632; Cleburne, 473 U.S. at 446. Other courts have come to exactly this conclusion.

Gryczan v. State, 942 P.2d 112, 124 (Mont. 1997) (“inclusion of behavior not associated

9 Lawrence v. Texas, 2003 WL 164135 (Jan. 16, 2003), Brief of the American Public Health Association, et al. In Support of Petitioners (amicus brief by the world’s largest public health organization and the National Alliance of State and Territorial AIDS Directors) at 12-15.

10 with the spread of AIDS and HIV and . . . exclusion of high-risk behavior among those other than homosexuals indicate the absence of any clear relationship between the

[sodomy] statute and any public health goals”); Commonwealth v. Wasson, 842 S.W.2d

487, 501 (Ky. 1992) (rejecting argument that criminalizing same-sex sexual activity is rationally related to curtailing spread of AIDS).10

c. Excluding Gay Teenagers Does Not Rationally Further the Asserted Interest In Encouraging Parental Responsibility

Judge Green concluded that punishing gay teenagers more severely by excluding them from the Romeo & Juliet law rationally furthers the state’s legitimate interest in promoting parental responsibility by allowing a heterosexual teenager whose unlawful sex with a minor results in pregnancy to get out of prison earlier and help to support the child. Opinion at 17. The problem with that assessment is twofold: there is no rational connection between the classification and the asserted purpose, and the asserted interest cannot be credited.

First, it is undisputed that the public policy of Kansas is to discourage sexual relations among teenagers and, even more so, to discourage unwed teen pregnancies.

How providing an incentive for teenagers to get young girls pregnant by assuring them that they will be out of prison soon furthers any legitimate state interest is baffling at best.

Second, the suggestion that the Romeo & Juliet law was intended to reduce penalties only for sexual conduct that might result in parenthood is belied by the legislature’s decision to include sodomy and lewd conduct in addition to intercourse.

10 Indeed, the precise public health argument accepted by the Court of Appeals was advanced and necessarily rejected in Lawrence. Amici supporting Texas argued that its sodomy law rationally furthered the curtailment of disease, but the Court nevertheless held that the law “furthers no legitimate state interest[.]” Lawrence, 123 S. Ct. at 2484.

11 Those activities do not result in parenthood for anyone, regardless of sexual orientation.

The asserted purpose is belied even more dramatically by the fact that the Romeo & Juliet law makes consensual intercourse the most serious offense - making it a severity level 8 offense while making consensual sodomy a severity level 9 offense. K.S.A. 21-3522.

That the legislature was trying to encourage parental responsibility when it reduced penalties for heterosexual teenagers who engage in lewd conduct or sodomy while retaining stiff sentences for gay teenagers who engage in the same consensual activities simply is not credible. Indeed, if the legislature wanted to encourage parental responsibility for children of consenting teenagers, it easily could have reduced the penalties for teenage parents, just as it did when it legalized that conduct for married teenagers. K.S.A. 21-3505(b).

For all of these reasons, the exclusion in the Romeo & Juliet law fails equal protection rational basis review. The restriction of the Romeo & Juliet law to “members of the opposite sex” should be stricken, and Matthew’s conviction should be reversed.

2. The Romeo & Juliet Exclusion Fails Heightened Scrutiny

a. The Exclusion Punishes Matthew More Harshly Because of His Sex

Restricting application of the Romeo & Juliet law to “members of the opposite sex” creates a sex-based classification that must be justified independently under the

Equal Protection Clause.11 As both Court of Appeals judges upholding Matthew’s

11 Judge Green’s contention that there is no sex discrimination because Matthew was convicted “based on his conduct of engaging in sodomy with a child, conduct over which he had some control,” Opinion at 23, misses the point. Matthew does not contest the criminality of his conduct; he contests only the wildly disparate punishment that results from his exclusion from the Romeo & Juliet law while a girl in identical circumstances would have been covered by the Romeo & Juliet law.

12 conviction acknowledged, the Romeo & Juliet law would have applied in Matthew’s case if he had been female. Opinion at 23, 30. Nevertheless, both judges concluded that the

Romeo & Juliet law does not classify defendants according to sex because it applies equally to men as a class and to women as a class. Id. at 24, 30. The Supreme Court has rejected the very same reasoning in striking down criminal laws that punished any person who had a sexual relationship with a member of a different race. Loving v. Virginia, 388

U.S. 1, 7-8 (1967).

In Loving, the Court rejected Virginia’s argument that because its anti- miscegenation law applied equally to blacks and whites, it did not discriminate on the basis of race, and thus did not warrant the level of review applied to racial classifications.

Id. Any classification that uses race, Loving held, is subject to whether or not it applies equally to the two classes. Id. The Court has rejected similar “equal application” arguments in cases involving sex-based classifications. For example, in

Califano v. Westcott, the Supreme Court struck down a law that provided benefits to families when a father became unemployed but not when a mother did. 443 U.S. 76, 83-

84 (1979). The Court rejected the argument that, because the benefits went to families, neither men nor women as a group were disadvantaged.12

12 Judge Green concluded that the State need not justify the sex-based exclusion in the Romeo & Juliet law because there is no evidence that the restriction to members of the opposite sex was “motivated by gender bias.” Opinion at 23. But independent evidence of an intent to discriminate is required only when a classification that is neutral on its face appears to have a discriminatory impact. Washington v. Davis, 426 U.S. 229, 241 (1976) (explaining intentional discrimination may be shown by pointing to “unequal application of the law” that is “express . . . on the face of the statute” or by submitting evidence of disparate impact and motivation from which bias may be inferred); see also Shaw v. Reno, 509 U.S. 630, 643 (1993) (“No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute. Express racial classifications are immediately suspect[.]”); Mississippi University for Women v. Hogan,

13 Both Loving and Califano reflect the bedrock principle that constitutional rights are individual, not aggregate. As Justice Kennedy has explained, equal protection is

concern[ed] with rights of individuals, not groups (though group disabilities are sometimes the mechanism by which the State violates the individual right in question). At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial [or] sexual . . . class.

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 152-53 (1994) (Kennedy, J., concurring).

Faced with an equal protection challenge to the sex-based classification created by restricting the Romeo & Juliet law to “members of the opposite sex,” the State was required to demonstrate that making application of the law turn on an individual’s sex

(even if it also turns on another person’s sex) is “substantially related” to an “exceedingly persuasive” justification. United States v. Virginia, 518 U.S. 515, 553 (1996). The State never attempted to carry this burden, nor did any member of the Court of Appeals panel suggest that it had done so.

b. The Exclusion Differentially Burdens the Exercise of a Fundamental Right

Matthew does not claim that criminalizing consensual sexual activity between two teenagers violates the Due Process Clause. To the contrary, he concedes that the State has a compelling interest in discouraging all teenagers from engaging in sexual activity with 14 or 15 year-olds and agrees that that interest justifies the penalties in the Romeo &

Juliet law. What Matthew challenges, under the Equal Protection Clause, is the fact that the exclusion in the Romeo & Juliet law unequally penalizes gay teenagers when they

458 U.S. 718, 723-24 (1982) (policy of express discrimination based on individual applicant’s gender triggered heightened scrutiny). Because the sex-based classification here is set forth expressly in the statutory restriction to “members of the opposite sex,” no further showing of legislative bias is required.

14 exercise the liberty interest discussed in Lawrence.

Hornbook equal protection law teaches that where a government classification subjects one group of people to additional burdens or penalties when they exercise a constitutionally-protected right, the resulting discrimination is constitutional only if the classification advances a compelling government interest and is narrowly tailored to achieve that goal. See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972)

(striking down policy that differentially burdened First Amendment right to picket by prohibiting only non-labor pickets); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632,

647-48 (1974) (striking down school policy that differentially burdened personal decision whether to have children by requiring pregnant teachers to take five months unpaid maternity leave); Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (striking down policy that differentially penalized individuals who exercised the right to travel by requiring one- year residency to be eligible for certain government benefits); Speiser v. Randall, 357

U.S. 513, 518 (1958) (striking down law that differentially penalized veterans who refused to take a loyalty oath by denying them tax exemptions); Memorial Hospital v.

Maricopa Cty., 415 U.S. 250, 257-58 (1974) (applying strict scrutiny to durational residency requirement for access to non-emergency medical treatment). Thus, when the state concludes that one person’s exercise of a constitutional right is somehow less worthy and imposes different penalties when that person exercises the right, the decision to impose additional burdens on the disadvantaged class is subject to strict scrutiny.

This is so even where the government has a compelling interest that would justify an equal restriction on the right for everyone. Mosley provides a perfect parallel example.

In Mosley, the Supreme Court held that even if a school could prohibit all people from

15 exercising the First Amendment right to picket (because it had a compelling interest in preventing disruption at school), it could not deny non-labor protestors the right to picket while allowing labor protestors to picket unless it had a compelling reason for discriminating between the two groups. 408 U.S. at 100.

As in Mosley, there is no dispute here over whether the State has a compelling interest in prohibiting all older teenagers from exercising their constitutional right to autonomy by engaging in consensual sexual relationships with 14 or 15 year old teenagers. But once the State begins drawing lines in an area that is constitutionally protected, whether by the First Amendment or by the promise of liberty in the Due

Process Clause, the State must show that it has a compelling reason for its discrimination.

This time-honored test applies here because the exclusion in the Romeo & Juliet law penalizes gay and heterosexual teenagers differently when they exercise the same constitutionally-protected liberty interest in sexual intimacy.

The Court of Appeals assumed, and the State argued below based on Justice

Scalia’s dissent in Lawrence, that strict scrutiny does not apply here because the liberty interest discussed in Lawrence is not a “fundamental” right. Opinion at 23, 31;

Appellee’s Brief at 9. That position conflicts with both the language and the reasoning of the majority in Lawrence. In deciding Lawrence, the Court made clear that the right to make personal decisions about intimate sexual activity—a long established constitutionally protected right for heterosexuals—applies equally to gay people. Id. at

2478, 2481-82. Sexual intimacy, including same-sex intimacy, the Court explained, is protected by the same fundamental right to autonomy recognized in Griswold v.

Connecticut, 381 U.S. 479 (1965) (striking down law against use of contraceptives by

16 married couples); Eisenstadt v. Baird, 405 U.S. 438 (1972) (extending Griswold to unmarried persons), Roe v. Wade, 410 U.S. 113 (1973) (striking down abortion restriction), Carey v. Population Services Int’l, 431 U.S. 678 (1977) (striking down restriction on the sale of contraceptives); and Planned Parenthood of Southeastern Pa. v.

Casey, 505 U.S. 833 (1992). Lawrence, 123 S. Ct. at 2476-82; id., at 2476

(characterizing these cases as “the most pertinent beginning” of its analysis).13

Whether characterized as a right to privacy, Griswold, 381 U.S. at 485; Roe, 410

U.S. at 152-53, or a right to autonomy or liberty, Casey, 505 U.S. at 851; Lawrence 123

S.Ct. at 2481-82, that constitutional interest has long been recognized as a protected right that triggers heightened scrutiny. See, e.g., Griswold, 381 U.S. at 485 (describing the right as “fundamental”); Casey, 505 U.S. at 850-52. And while the Supreme Court has often described the rights that trigger strict scrutiny as “fundamental,” see, e.g., Romer,

517 U.S. at 631, it also has spoken of them in other terms, particularly in recent years.

See, e.g., Casey, 505 U.S. at 851 (“the liberty protected by Fourteenth Amendment”);

Cleburne, 473 U.S. at 440 (“personal rights protected by the Constitution”); Lawrence,

13 While a teenager’s constitutional rights may be more limited than an adult’s in some circumstances, and while the state is more likely to have a compelling state interest that justifies intruding upon a teenager’s rights, it is well established that teenagers - like adults - have a due process liberty interest in being free from state compulsion in making these types of personal decisions. See, e.g., Carey v. Population Services Int’l, 431 U.S. 678, 684, 693 (1977) (plurality). Laws that burden a minor’s liberty interest must be narrowly tailored to advance a compelling governmental interest unless they advance a “significant state interest that is not present in the case of an adult.” Id. (rejecting State’s interest in regulating morality of minors by discouraging promiscuous sexual intercourse as justification for prohibiting distribution of contraception to teenagers). That minors are protected by the fundamental liberty interest discussed in Lawrence and Casey does not undermine neutral age of consent laws, which advance the State’s compelling interest in protecting children from sexual abuse. But the existence of that right does require the State to satisfy heightened scrutiny to justify unequal age of consent laws.

17 123 S. Ct. at 2481-82 (the “substantive guarantee of liberty” in personal autonomy, including in matters of private, intimate conduct). Thus, Lawrence firmly establishes that the right to choose whether and how to engage in sexual activity is an integral part of the long-established right to make personal decisions in matters that are “central to personal dignity and autonomy.” 123 S. Ct. at 2481 (quoting Casey, 505 U.S. at 851).14

Because the constitutionally-protected liberty interest discussed in Lawrence is implicated here, and because the Romeo & Juliet law’s differential burden on the exercise of that right triggers heightened scrutiny, the legislature’s decision to exclude gay

14 Justice Scalia suggested in his dissent in Lawrence, and the Court of Appeals decided in this case, Opinion at 23, 31, that the Lawrence majority was applying not strict scrutiny (the standard traditionally applied in privacy/autonomy/liberty cases), but a new form of rational basis review. 123 S. Ct. at 2492, 2495 (Scalia, J., dissenting). But it is impossible to read Lawrence as a case involving rational basis review without contradicting established law. Justice Scalia first insists that Lawrence does not require strict scrutiny because the majority did not declare that “homosexual sodomy is a ‘fundamental right.’” Id., at 2488 (Scalia, J., dissenting). But what matters is not the words the Court used to describe the right, but how the Court analyzed the state’s interference with it. Justice Scalia says that the Court did not subject the Texas sodomy law, which burdened that right, to strict scrutiny. But the Court’s holding - that the statute “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” - belies that suggestion. Id. at 2484 (emphasis added). That sort of weighing to determine whether a governmental interest is sufficiently compelling to justify the level of intrusion on a personal right is done only when the Court is applying heightened scrutiny. Such weighing simply is not part of the rational basis test, which asks only whether government action is “rationally related to a legitimate state interest.” City of Cleburne, 473 U.S. at 440. Justice Scalia also suggests that the majority’s use of the term “legitimate state interest” indicates that the Court was applying rational basis review. Lawrence, 123 S. Ct. at 2492. But the term “legitimate” is used at all levels of equal protection review; to satisfy strict scrutiny, a state interest must be both legitimate and compelling, as the Supreme Court has recognized numerous times. See, e.g., Roe, 410 U.S. at 155 (“Where certain ‘’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’ and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.”) (emphasis added) (internal citations omitted).

18 teenagers from the Romeo & Juliet law may be upheld only if it is narrowly tailored to advance a compelling governmental interest. See, e.g., LaFleur, 414 U.S. at 648.

This is not to say that the State cannot punish consensual sexual activity between teenagers; Matthew has conceded that it may. But if the State decides to punish some teenagers more severely than others when they engage in the same consensual sexual activity, then it must justify that decision to discriminate, and its proffered justification must satisfy strict scrutiny. Because the State has not made any showing that it has a compelling interest that justifies sharply punishing gay teenagers who engage in consensual sexual activity while giving heterosexual teenagers a slap on the wrist when they engage in the very same activity, the exclusion of the Romeo & Juliet law to

“members of the opposite sex” should be stricken and Matthew’s conviction should be reversed with instructions to recharge him, if at all, under the Romeo & Juliet law as constitutionally construed.

3. Classifications Based on Sexual Orientation Are Suspect

Certain types of classifications, historically tied to “prejudice and antipathy” and

“seldom related to the achievement of any legitimate state interest,” signal a breakdown in the normal political process and warrant special judicial vigilance. Cleburne, 473 U.S. at 440. Neither Romer nor Lawrence decided the proper level of equal protection review for classifications based on sexual orientation. However, now that the Court has remedied the confusion created by Bowers, it is clear that discrimination based on sexual orientation triggers heightened scrutiny. Three factors for identifying a suspect class emerge from Supreme Court precedent: (1) a history of purposeful unequal treatment on the basis of stereotyped characteristics or antipathy; (2) a lack of relation between the trait

19 defining the group and the ability to perform or contribute to society; and (3) a position of relative political powerlessness within the majoritarian political sphere. See Plyler v.

Doe, 457 U.S. 202, 217 n.14 (1982); Mass. Bd. of Retirement v. Murgia, 427 U.S. 307,

313 (1976).

First, every court to consider the question has recognized the history of anti-gay discrimination. See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563,

573 (1990); Ben Shalom v. Marsh, 881 F. 2d 454, 465 (7th Cir. 1989); Padula v. Webster,

822 F.2d 97, 104 (D.C. Cir. 1987); see also Rowland v. Mad River Sch. Dist., 470 U.S.

1009, 1014 (1985) (Brennan, J., dissenting from denial of certiorari). In the 1950s, gay people were labeled “sex perverts,” grouped with Communists as a security risk, and targeted for termination from government employment. Patricia A. Cain, Litigating for

Lesbian and Gay Rights: A Legal History, 79 VA. L. REV. 1551, 1565 (1993). Police routinely arrested patrons at gay bars. Id. Gay aliens were excluded from the United

States “as psychopaths” until 1965 and as “sexual deviants” until fairly recently. Tracey

Rich, Sexual Orientation Discrimination in the Wake of Bowers v. Hardwick, 22 GA. L.

REV. 773, 773 n. 4 (1988).

That history of purposeful unequal treatment continues to the present day. In

2000, three out of four gay survey respondents reported discrimination based on sexual orientation, and one third reported being personally targeted for physical violence.15

Recent court decisions reflect continuing employment discrimination in schools, hospitals, telephone companies and police departments. See, e.g, Miguel v. Guess, 51

15 The Kaiser Family Foundation, Inside-OUT (Nov. 2001) (“KFF Study”) at 3-4 (http://www.kff.org/kaiserpolls/loader.cfm?url=/commonspot/security/getfile.cfm&Pa geID=13874).

20 P.3d 89 (Wash. App. 2002); Quinn v. Nassau County Police Dept., 53 F. Supp. 2d 347

(E.D.N.Y. 1999); Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279 (D. Utah 1998);

DeSantis v. Pacific Tel., 608 F.2d 327 (9th Cir. 1979). Gay parents continue to be denied custody and to have their visitation restricted solely because of their sexual orientation.

See, e.g., Ex parte H.H., 830 So.2d 21, 26-27 (Ala. 2002) (Moore, C.J., concurring);

Weigand v. Houghton, 730 So. 2d 581, 586-87 (Miss. 1999); Bottoms v. Bottoms, 457

S.E.2d 102 (Va. 1995). This history of discrimination distinguishes gay people from other groups that the Supreme Court has deemed non-suspect classes, such as close relatives and individuals over age 50. See, e.g., Lyng v. Castillo, 477 U.S. 635, 638

(1986); Murgia, 427 U.S. at 313-14.

Second, unlike certain other characteristics deemed non-suspect, such as disability, Cleburne, 473 U.S. at 442, sexual orientation has no bearing on ability to perform in or contribute to society. Homosexuality is not correlated with any

“impairment in judgment, stability, reliability or general social and vocational capabilities.”16 And, although the myth persists, there is no link between homosexuality and child molestation.17 Nor is there any evidence that being raised by a gay parent has any negative effect on a child’s healthy development.18

16 American Psychiatric Association, Fact Sheet: Gay, Lesbian and Bisexual Issues (May 2000) (http://www.psych.org/public_info/gaylesbianbisexualissues22701.pdf).

17 See, e.g., Carole Jenny, et al., Are Children at Risk of Sexual Abuse by Homosexuals?, 94 PEDIATRICS 44 (1994); John Boswell, CHRISTIANITY, SOCIAL TOLERANCE AND HOMOSEXUALITY at 16 (1981) (documenting that Jews were historically labeled child molesters).

18 Ellen C. Perrin, M.D. & Committee on Psychosocial Aspects of Child and Family Health, American Academy of Pediatrics, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 PEDIATRICS 341 (Feb. 2002) (http://aappolicy. aappublications.org/cgi/reprint/pediatrics;109/2/341.pdf) (“[T]here is no systematic

21 Third, gay people face substantial obstacles in the political process. Openly gay officials are rare in the critical decision-making bodies that make, interpret and enforce the law. “Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena.” Rowland, 470 U.S. at 1014

(Brennan, J., dissenting from denial of certiorari); see also Watkins v. U.S. Army, 875

F.2d 699, 727 (9th Cir. 1989) (Norris, J., concurring). There is no federal statutory protection against discrimination based on sexual orientation, and only a patchwork of protection is available at the state and local levels. Moreover, where gay people have achieved even modest successes in the political arena, the initiative and referendum process often has been used to change the rules of the game. Use of this extraordinary mechanism to strip the government of power to protect an unpopular minority mirrors the initial backlash against civil rights laws, when state constitutional amendments created barriers to enactment of laws barring racial discrimination. Reitman v. Mulkey, 387 U.S.

369 (1967); Hunter v. Erikson, 393 U.S. 385 (1969).

Finally, although the Supreme Court has referred to “immutability” on some occasions, it has not restricted suspect-class status to persons with immutable traits.

Cleburne, 473 U.S. at 442 n. 10 (casting doubt on immutability theory); id. at 440-41

(stating defining characteristics of suspect classes without mentioning immutability);

Murgia, 427 U.S. at 313 (same); San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28

(1973) (same); Lyng, 477 U.S. at 638 (listing immutability as one of several disjunctive

difference between gay and nongay parents in emotional health, parenting skills, and attitudes toward parenting. No data have pointed to any risk to children as a result of growing up in a family with 1 or more gay parents.”).

22 alternatives). But even if it were a necessary element, immutability simply refers to a characteristic that is “beyond the individual’s control,” Cleburne, 473 U.S. at 441, or that

“either cannot change, or should not be required to change because it is fundamental to . .

. individual identities or consciences,” Hernandez-Montiel v. INS, 225 F.3d 1084, 1092

(9th Cir. 2000).19 Although the origins of sexual desire are still unknown, a person’s sexual orientation, whether homosexual or heterosexual, cannot be changed either by a simple decision-making process or by medical intervention.20

Based on these indicia, sexual orientation classifications like the exclusion in the

Romeo & Juliet law warrant strict scrutiny. Because the State has not established that such discrimination is narrowly-tailored to advance a compelling interest, the exclusion should be stricken from the statute, and Matthew’s conviction should be reversed.

B. Cruel and Unusual Punishment

As Matthew argued below, his conviction and sentence also violate the Eighth

Amendment and sections 1 and 9 of the Kansas Bill of Rights. Matthew was subjected to

16 additional years in prison and mandatory offender registration based solely on his status, namely his sex and sexual orientation. Imposing any criminal penalty based on status violates the Eighth Amendment. As the Supreme Court recently reiterated,

19 Immutability plainly does not mean an absolute inability to change the class trait. Illegitimate children can be adopted; aliens can become naturalized; people can change their sex; and members of certain races and ethnic groups can “pass” as white or hide their national origin.

20 U.S. Surgeon General, The Surgeon General’s Call to Action (July 9, 2001) (http://www.surgeongeneral.gov/library/sexualhealth/call.htm) (“There is no valid scientific evidence that sexual orientation can be changed.”); APA, supra, n.16 (“There is no published scientific evidence supporting the efficacy of ‘reparative therapy’ as a treatment to change one’s sexual orientation.”).

23 even though imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual, it may not be imposed as a penalty for the “status” of narcotic addiction because such a sanction would be excessive . . . . Even one day in prison would be a cruel and unusual punishment for the “crime” of having a common cold.

Atkins v. Virginia, 536 U.S. 304, 311 (2002) (quoting Robinson v. California, 370 U.S.

660, 666-67 (1962)) (internal marks omitted). Likewise, any additional penalty imposed for the “crime” of being male or gay violates the Eighth Amendment.21

Judge Green’s response that Matthew could “control” his conduct is beside the point, Opinion at 20-21; a heterosexual girl who committed the same offense would have the same ability to control her conduct. Matthew’s additional punishment was imposed because of his sexual orientation and his sex, not because of his conduct—a heterosexual girl who engaged in the same conduct would face a dramatically shorter sentence and no mandatory registration. The prohibition against status-based punishment is absolute; the additional penalties imposed because of Matthew’s status violate the Eighth

Amendment.22

C. Improper Use of Juvenile Adjudications under Apprendi and Gould

Matthew respectfully contends that increasing his sentence based on his prior juvenile adjudications violated the federal and state constitutional rights recognized in

21 Matthew does not contend that punishing an older teenager for performing consensual oral sex on a younger teenager is cruel and unusual; rather, it is the additional punishment imposed because of his status that violates the Eighth Amendment.

22 State v. Clemons, 273 Kan. 328, 343-44 (2002), where this Court held that it has no jurisdiction to consider Eighth Amendment proportionality arguments in direct appeals from guideline sentences, does not prevent consideration of Matthew’s status- based Eighth Amendment challenge. The reasoning underlying Clemons does not apply to status-based challenges to guideline sentences because, by their very nature, status- based challenges are directed not to the guidelines themselves but to the underlying definition of the offense.

24 Apprendi v. New Jersey, 530 U.S. 466 (2000) and State v. Gould, 271 Kan. 394 (2001).

Acknowledging that this Court rejected this claim in State v. Hitt, 273 Kan. 224 (2002), cert. den., Hitt v. Kansas, 537 U.S. 1104 (2003), Matthew requests that this Court reconsider its decision in Hitt in light of recent authority and scholarly criticism. State v.

Brown, 853 So. 2d 8, 22 (La. Ct. App. 2003) (holding “prior juvenile adjudications that resulted absent a jury trial are constitutionally inadequate under the Apprendi exception for purposes of subsequent sentence enhancement”); Brian P. Thill, Comment: Prior

“Convictions” under Apprendi: Why Juvenile Adjudications May Not Be Used to

Increase an Offender’s Sentence Exposure If They Have Not First Been Proven to a Jury

Beyond a Reasonable Doubt, 87 MARQ. L. REV. 573 (2004).

III. CONCLUSION

For the foregoing reasons, Matthew Limon prays that this Court reverse his conviction and sentence reverse his conviction and sentence with instructions that the

State initiate any proceedings under the Romeo & Juliet law within 30 days.

Respectfully submitted by attorneys for Defendant-Appellant Matthew Limon:

______Paige A. Nichols, # 16400 Tamara Lange James D. Esseks Attorney at Law California Bar # 177949 California Bar # 159360 P.O. Box 582 ACLU Foundation ACLU Foundation Lawrence, KS 66044 1663 Mission St., Ste. 460 125 Broad St., 18th Fl. (785) 832-8024 San Francisco, CA 94103 New York, NY 10004 (785) 832-8024 (fax) (415) 293-6361 (212) 549-2627 Certificate of Service

I hereby certify that true and correct copies of the foregoing were placed in the United States mail, first class postage prepaid, on this _____ day of June, 2004, addressed to:

25 Jared Maag (5 copies) Assistant Attorney General 120 SW 10th, 2nd Floor Topeka, KS 66612-1597

Matthew Limon, # 70713 (1 copy) Ellsworth Correctional Facility P.O. Box 107 Ellsworth, KS 67439

______Paige A. Nichols, Kansas Bar # 16400

26