The Kansas Supreme Court has given the nation the latest example of judges who are seemingly eager to legislate from the bench.
There are a lot of people, including President Bush, who have railed against the usurpation of legislative authority by the courts, but if the current trends are to be reversed, they first need to be better known and understood.
The Kansas court’s decision is a textbook example of how it’s done. The case was filed by the American Civil Liberties Union on behalf of an 18-year-old male who had been convicted of criminal sodomy and sentenced to 17 years in prison for engaging in oral sex with a 14-year-old boy.
Matthew Limon, now 23, received the long sentence because prior to that incident he had been twice convicted as a juvenile of aggravated criminal sodomy. Under the terms of his sentence, he was to receive post-release supervision and would have been required to register as a sex offender.
The ACLU argued that his conviction should be set aside because Kansas also has on the books the “Romeo and Juliet Statute,” which applies to unlawful voluntary sexual conduct between heterosexual teenagers.
The history of that act shows it was written to lessen the sentences imposed on young people as a result of unlawful sexual conduct that were part of a voluntary “mutual relationship.” Typically, these cases involve a boy under the age of 19 and a girl who is 14 or 15. The act was intended to give the district attorneys a prosecutorial option to seek sentences in the 12 to 15 month range, the theory being that extended incarceration should be reserved for the most chronic and violent offenders.
What the court did last week was sweep aside all of these considerations and substitute a new court-devised scheme.
That scheme says that Kansas can’t be solely concerned with Romeo and Juliet relationships, but must be equally concerned with Romeo and Romeo and Juliet and Juliet couplings.
In reaching this edict, the court did not discuss or even seem to address the issue of whether Limon’s conviction was valid under the criminal sodomy statute. It instead focused on the question of whether he could have, and should have, been charged under the Romeo and Juliet act.
The court noted that Limon’s victim consented to the sexual act, “and when he asked Limon to stop, Limon did.” It concluded that there was less than four years separating the ages of the two principals. Finally, and most important, it concluded there was no rational basis for the law’s requirement limiting its application to members of the opposite sex.
In other words, the Kansas Legislature had no rational basis for limiting its concerns to voluntary, if unlawful, sexual acts between teenage boys and girls.
The effect of the court’s decision is to rewrite the Kansas statute by removing any reference to acts committed by “members of the opposite sex.”
A few conclusions come quickly to mind:
Thanks to two U.S. Supreme Court decisions – one involving Colorado’s Amendment 2, which prohibited protected status for the state’s homosexuals, and the other involving a Texas sodomy statute – courts now have a license to substitute their own judgment for what is and what is not a “rational basis” for legislation affecting homosexuals.
The decision not only usurps legislative authority, it also impinges on the executive branch. The court effectively repeals prosecutorial discretion, the right to decide which statute fits a particular case.
The Kansas court, as well as a number of other courts, seems willing to go beyond the legal issues in a case and preach on issues of sociology, public health and psychology. In this case, for example, the court makes a number of sweeping statements. It says that no evidence justifies the conclusion that “homosexual activity is more harmful to minors than adults.” It also relies on a friend of the court brief that says “sexual orientation is already settled by the time a child turns 14 and that efforts to pressure teens into changing their sexual orientation are not effective.”
This is arrogance of a very high order. In fact, the Kansas decision is the kind of judicial activism that has rightly alarmed the general public and at last made the makeup of our courts a matter of such urgent concern.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
