State v. Limon, No. 85,898.

• Decision Date: 30 January 2004
• Docket Number: No. 85,898.
• Citation: 32 Kan.App.2d 369,83 P.3d 229
• Parties: STATE OF KANSAS, Appellee, v. MATTHEW R. LIMON, Appellant.
• Court: Kansas Court of Appeals

32 Kan.App.2d 369

83 P.3d 229

STATE OF KANSAS, Appellee, v. MATTHEW R. LIMON, Appellant.

No. 85,898.

Court of Appeals of Kansas.

Opinion filed January 30, 2004.

Tamara Lange, of American Civil Liberties Union Foundation, Lesbian & Gay Rights Project, of San Francisco, California, James D. Esseks, of American Civil Liberties Union Foundation, Lesbian & Gay Rights Project, of New York, New York, and Paige A. Nichols, of Lawrence, for appellant.

Jared S. Maag, assistant attorney general, and Phill Kline, attorney general, for appellee.

Jeffrey E. Goering, of Thompson Stout & Goering, LLC, of Wichita, and Matthew D. Staver, of Liberty Counsel, of Longwood, Florida, for amicus curiae Kansas Legislators.

Timothy M. O'Brien and Chelsi K. Hayden, of Shook, Hardy & Bacon, L.L.F., of Overland Park, and Julie M. Carpenter and Nicole G. Berner, of Jenner & Block, LLC, of Washington, D.C., for amicus curiae DKT Liberty Project.

Before PIERRON, P.J., GREEN and MALONE, JJ.

GREEN, J.:

Matthew R. Limon was convicted of criminal sodomy, a severity level 3 person felony, in violation of K.S.A. 21-3505(a)(2). He was sentenced to 206 months' imprisonment and 60 months' supervised release. Limon argued that K.S.A. 2002 Supp. 21-3522(a)(2) was unconstitutional because it impermissibly discriminated between heterosexual and homosexual sodomy. Limon maintained that the classification limiting the applicability of K.S.A. 2002 Supp. 21-3522 to "members of the opposite sex" violated his right to equal protection because it criminalized heterosexual sodomy less severely than homosexual sodomy.

Limon appealed to this court. Relying primarily upon Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), which refused to confer a fundamental right to engage in homosexual conduct, this court affirmed Limon's conviction. State v. Limon, Case No. 85,898, unpublished opinion filed February 1, 2002 (Limon I).

Our Supreme Court denied Limon's petition for review. See 274 Kan. 1116. Limon then filed a petition for writ of certiorari with the United States Supreme Court. The Court deferred its ruling until the decision in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003), was filed on June 26, 2003. The next day, the Court granted the petition for writ of certiorari, vacated the judgment, and "remanded to the Court of Appeals of Kansas for further consideration in light of Lawrence." Limon v. Kansas, 539 U.S. 955 (2003).

Because the challenged classification has a rational basis, we affirm. In addition, as to Limon's contention that K.S.A. 2002 Supp. 21-3522 impermissibly discriminates on the basis of gender, we disagree and affirm.

Limon, an 18-year-old male adult, and M.A.R., a 14-year-old boy, both resided at a school for the developmentally disabled. M.A.R. told police that Limon had performed one instance of oral sex on him. M.A.R. further told the police that Limon performed oral sex on him until he asked Limon to stop.

Limon was later charged with criminal sodomy under K.S.A. 21-3505(a)(2). Limon moved to dismiss the complaint, arguing that he should have been charged with unlawful voluntary sexual relations under K.S.A. 2002 Supp. 21-3522. He further argued that because he could not be charged under K.S.A. 2002 Supp. 21-3522, as it applied only to heterosexual sex, this statute violated his right to equal protection.

The trial court rejected Limon's equal protection arguments. Limon was tried before the trial court based on stipulated facts. The trial court convicted Limon based on those stipulated facts. Because of Limon's prior two adjudications for aggravated criminal sodomy, the trial court sentenced Limon to 206 months' imprisonment.

Constitutionality and Construction of Statutes

It is a basic rule that every reasonable construction must be applied to save a statute from unconstitutionality. Rust v. Sullivan, 500 U.S. 173, 190, 114 L. Ed. 2d 233, 111 S. Ct. 1759 (1991), and NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 59 L. Ed. 2d 533, 99 S. Ct. 1313 (1979). "When the constitutionality of a statute is challenged, the statute comes before the court cloaked in a presumption of constitutionality." State v. Baker, 11 Kan. App. 2d 4, 6, 711 P.2d 759 (1985), rev. denied 238 Kan. 878 (1986) (citing State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 [1978]). "Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done." Bair v. Peck, 248 Kan. 824, Syl. ¶ 1, 811 P.2d 1176 (1991).

Limon first contends that because gay teenagers are excluded from the protection of K.S.A. 2002 Supp. 21-3522, the statute violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Although the Equal Protection Clause guarantees equality before the law, Norvell v. Illinois, 373 U.S. 420, 423, 10 L. Ed. 2d 456, 83 S. Ct. 1366 (1963), it does not require the law to treat all persons exactly alike. Tigner v. Texas, 310 U.S. 141, 147, 84 L. Ed. 1124, 60 S. Ct. 879 (1940).

Statutes by necessity are directed to less than universal situations. Morey v. Doud, 354 U.S. 457, 472, 1 L. Ed. 2d 1485, 77 S. Ct. 1344 (1957) (Frankfurter, J., dissenting), overruled by New Orleans v. Dukes, 427 U.S. 297, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976)

. If this were not so, statutes would be ineffective because they would fail to take into account factual differences. See Morey, 354 U.S. at 472 (Frankfurter, J., dissenting). As a result, a mere showing that different persons or classes are treated differently is not sufficient to establish an equal protection violation. Griffin v. School Board, 377 U.S. 218, 230, 12 L. Ed. 2d 256, 84 S. Ct. 1226 (1964).

Moreover, legislatures are presumed to have acted within their constitutional power in making a classification. Chief Justice Warren, speaking for a unanimous Court in rejecting the claim that the exemptions in a Maryland law violated equal protection, stated: "State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. [Citations omitted.]" McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961).

In implying that it is irrelevant whether the legislature could have enacted a better law under a rational basis review, the United States Supreme Court declared:

"[E]qual protection analysis `is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.' FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). See also, e.g., Dandridge v. Williams, 397 U.S. 471, 486 (1970)

. Nor does it authorize `the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.' New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam). For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. [Citations omitted.] Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. See, e.g., Nordlinger v. Hahn, 505 U.S. 1, 11 (1992); Dukes, supra, at 303. Further, a legislature that creates these categories need not `actually articulate at any time the purpose or rationale supporting its classification.' [Citations omitted.] Instead, a classification `must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.' [Citations omitted.]" (Emphasis added.) Heller v. Doe, 509 U.S. 312, 319-320, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993).

Similarly, our Supreme Court, in determining the appropriate level of scrutiny to apply in an equal protection claim, stated: "[I]t appears that the legislature's purpose in creating the classification need not be established. The classification must, however, bear a rational relationship to a legitimate objective." Stephenson v. Sugar Creek Packing, 250 Kan. 768, 774, 830 P.2d 41 (1992). As a result, the question to be answered is whether the challenged classification has a rational basis. If the answer is yes, our inquiry is over.

Lawrence v. Texas

Limon relies on the recent United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, in support of his equal protection claim. Nevertheless, Lawrence is factually and legally distinguishable from the present case. In explaining that homosexual acts, illegal under Texas law, are protected by the Fourteenth Amendment's Due Process Clause of the United States Constitution, Justice Kennedy stated:

"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government." 539 U.S. at 578.

From this language, the major premise that underlies the Lawrence holding is clearly apparent:

No state may prohibit adults from engaging in private consensual sexual practices common to a homosexual lifestyle.

This major premise may be reconstructed to state:

All adults may legally engage in...