Those who are inclined to celebrate the Supreme Court’s decision in Lawrence v. Texas holding the prohibition of homosexual sodomy to be unconstitutional on privacy grounds may want to take a look at the Supreme Court’s first application of Lawrence yesterday. The Court entered an order vacating the conviction of a then 18-year-old Kansan for oral sodomy with a 16-year-old boy under a Kansas statutory rape law. According to Linda Greenhouse in today’s New York Times, the Kansas law at issue is a variety of a statutory rape law, making sodomy with any child under the age of 16 a crime. However, Kansas law treats underage heterosexual sex more leniently than underage homosexual sex.
The Court’s opinion in Lawrence was decided on privacy grounds under the due process clause of the fourteenth amendment; only Justice O’Connor’s concurring opinion held the Texas law unconstitutional on equal protection grounds. By its terms, Lawrence should have nothing to do with the Kansas case. The Court nevertheless remanded the Kansas case to the Kansas Court of Appeals for reconsideration of the defendant’s conviction and 17-year sentence in light of Lawrence.
UPDATE: Our reader Dafydd ab Hugh writes: “I think you’ve gone off the deep end here, BT. An eighteen year old Kansas boy gave a you-know-what to a sixteen year old. Everyone, including the prosecutor, agrees that if the sixteen year old had been a girl, the boy would have gotten a few months in a minimum security county jail.
“But since the sixteen year old was a boy, the older boy got *seventeen years* in a state penitentiary — more than he probably would have gotten had he MURDERED the younger teen. For consensual oral sex!
“The Supremes overturned this verdict, remanding the case with the strongest possible hint that the lower court should consider Lawrence v. Texas and make the sentence proportional to what he would have gotten had he been straight, not gay.
“And BT…you really think *this* is going to make people leap up and start shouting that a great miscarriage of justice has been done? That we desperately *need* to lock up teenagers for years and years for gay sex, but only three months for straight sex?
“‘The Court’s opinion in Lawrence was decided on privacy grounds under the due process clause of the fourteenth amendment; only Justice O’Connor’s concurring opinion held the Texas law unconstitutional on equal protection grounds. By its terms, Lawrence should have nothing to do with the Kansas case.’
“I understand your point. But this is so inside-baseball, it’s physically painful. Here is your case on a nutshell: sure, it may be horribly unjust… but legally speaking, the kid should have had to serve out his whole sentence, because damn it, Lawrence was only decided on Due Process, not Equal Protection grounds, so there! Let him rot in hell!”
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