Kansas Sodomy Law Challenged by ACLU
TOPEKA, Kansas --The American Civil Liberties Union Sept. 16 urged the Kansas Court of Appeals to overturn the state's same-sex sodomy law, arguing that it violates the equal protection and privacy rights of lesbians and gay men.
"This is one of the most unabashedly discriminatory laws our nation has ever seen," said Matt Coles, director of the ACLU's Lesbian and Gay Rights Project, who argued the case.
"According to the state of Kansas, the sex lives of heterosexuals are their own business; they can do as they please," Coles said. "But the state takes a different view of lesbians and gay men. If lesbians and gay men agree to have oral sex together, they are criminals."
"If a law ever denied equal protection, this one does," Coles added.
The case involves Max D. Movsovitz, a self-employed artist who was criminally charged on April 28, 1995 with violating a Topeka law which prohibits soliciting or agreeing to have sodomy -- oral or anal sex.
According to the record in the case, Movsovitz had gone to the park to enjoy a balmy spring afternoon and finish some paperwork when an undercover police officer pulled up alongside in a car and struck up a conversation. Several minutes into their exchange, the officer steered the conversation toward sex, asking questions about whether Movsovitz would engage in oral sex with another man. When Movsovitz said he would, the officer flashed his badge and issued a citation for "solicitation of sodomy."
In 1995 a state municipal court found Movsovitz guilty of violating the Topeka solicitation law, which, like the state sodomy law, only applies to lesbians and gay men. The validity of the local law depends on the constitutionality of the state ban. Movsovitz was fined $499 and placed on probation.
The ACLU said that the judgment against Movsovitz should be overturned, and the law ruled unconstitutional because it violates the equal protection and privacy guarantees of both the state and federal Constitutions.
"The government may not create one set of criminal rules for lesbians and gay men, and an entirely different set of rules for every one else," Coles said. "Laws like that violate our most basic understanding of equal protection."
Twenty-one states in the country still have sodomy laws on the books, but only six of those states, including Kansas, have laws limited to same-sex acts. Nearly half the states have repealed their sodomy laws through legislation and the rest have been struck down by courts. Most recently, the Montana Supreme Court invalidated its same-sex sodomy law in July, in a case where the ACLU appeared as a friend of the court. Few people are ever convicted for criminal sodomy, the ACLU said. Instead, these laws are primarily used to deny lesbians and gay men a range of other rights. Some states, for instance, have invoked sodomy laws to deny lesbians and gay men jobs, while others have used them to separate children from their gay mothers and fathers.
"We will continue to challenge sodomy laws until every last one has been eliminated," said Coles. "These laws are a throwback to the dark ages, and a constant threat to basic civil liberties."