First, They Came for the Queers: Now What's the Matter with Kansas?

"You have the court substituting its moral judgment for the moral judgment of the people, as expressed through the legislative body. I think it's making a bold statement about judicial power."

Question: If a 18 year boy has consensual sex with a 14 year old girl and receives a maximum of 15 months in prison, what should the sentence be if a 18 year old boy has consensual sex with a 14 year old boy?

Answer: If you live in Kansas, 17 years.

Just to refresh ourselves before we continue.

Amendment XIV -

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Matthew Limon had consensual sex one week after his 18th birthday with a male just shy of his fifteenth. He was sentenced to just over 17 years in prison. Kansas, where this happened, has a “Romeo and Juliet” law which applies to these situations. If the younger person is at least 14 and the older no more than 18 and no more than four years older than the younger, the punishment is only 15 months. The law only applies to different sex couples.

In The State of Kansas V Matthew Limon, the Kansas Supreme Court overruled a lower court decision, deciding that the exclusion of same-sex sex from the “Romeo and Juliet” statute violated the 14th amendment. Their decision relied heavily on the recent US Supreme Court decision in Lawrence v. Texas striking down sodomy laws that in practice or law were harsher on consensual same-sex sex.

The Kansas legislature is livid.

To express their outrage, 28 of the Kansas Senate's 40 members are “sponsoring a proposed constitutional amendment to require Senate confirmation of Supreme Court appointees. And Rep. Lynne Oharah, R-Uniontown, has proposed nonpartisan elections. Currently, a nonpartisan commission screens applications for the Supreme Court and picks three finalists, but the governor makes the appointment.”

The quote at top is from Republican Kansas representative Lance Kinzer. Kinzer added, "The Legislature has to make moral distinctions between groups of people based on their conduct. That's what lawmaking is all about."

You there with the hip-hop music, off to jail with ye! You! Reading that Leftist Propaganda! We disapprove morally of that conduct! To jail with ye too! And the Queers - oh those Queers! Lock ‘em up! Lock ‘em all up!

What’s fundamentally at stake here is more than who gets to have sex with who. It’s a fundamental question of what our legislatures are entitled to do. Can they write fundamentally unconstitutional laws? Is it a violation of the Constitution for the Courts to insist that the Legislatures follow the Constitution? Can the majority legislate away the rights of the minority?

Right Wing talking points about Activist Judges are morphing into a sense, a sincere belief, that anything a legislature decides to do is sacrosanct. And with the ascendency of Caprice is the withering of General Principles. No longer (if ever?) do a growing number of people have a sense of constraining our collective will to non-discriminatory legal principles.

This then is the heart of the conservative Constitutional Originalist project. By substituting Intent for Principle and then assuming that we can in fact divine that Intent, the Originalists discover – lo and behold – that the Intent of the Framers is remarkably similar to the values of the contemporary Originalists. That Intent contains a component of Values explains the appeal of Constitutional Originalism to Conservatives, whose foundational belief is that Conservatives are the keeper of the flame for the Framers. How little appreciated today is the radicalism of the American Revolution and the willingness of intellectuals of the Enlightenment to question fundamental assumptions.

Modern Constitutional Originalism becomes an avenue for legislating Christian theology when the Originalists assume that the Framers were themselves conservative Christian men. So it’s hard not to also notice how this Originalism transforms the Constitution into something akin to a sacred text whose mysterious Intent must be divined in order to follow the will of the Founding Fathers.

You only have the Rights the Founding Fathers intended you to have. And they never intended to allow same-sex sex, much less same-sex marriage.

The problem, of course, lies in fundamentally different ideas about what our Constitution is or even what a constitution is in a Democracy. And we’re talking past each other. Do we start with a presumption of Liberty and only curtail rights where the Constitution or a law consistent with the Constitution explicitly allows. Or are all the Rights we have the ones explicitly granted by the Constitution and legislatures? Is it, in fact, the case that making “moral distinctions between groups of people based on their conduct…(is) what lawmaking is all about”? Or is lawmaking meant to have a more limited role to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”? One side (the side of Truth and Reason ;) ) says that the Constitution is not a bill of particulars but a statement of Principles. The other side says that to apply the general principles of the Constitution to specific contemporary situations is “discovering” or even “inventing” Rights not found there.

No, the Constitution doesn’t contain an explicit “right” to marriage. But it doesn’t restrict it either. And it does, as amended, provide that whatever protections or privileges the states or the federal government offer, must be done so equally, to all citizens.

And it’s the 14th Amendment, not the Full Faith and Credit clause, that is the real problem for conservatives. It turns out that full equality under the law is a fairly radical concept and, if adhered to, it makes it rather difficult for people to use the law to privilege one class over another or to use the law to “make moral distinctions between groups of people.” Whether based on conduct or identity, legislatures have no business making moral distinctions in the law, much less between groups of people.

This is the reason for the Federal Marriage Amendment as well as the spate of state constitutional amendments banning same-sex marriage or any sort of legal protection to same-sex couples. It turns out that a Constitution based on generic equality under the law is not compatible to the project of using the law to ““make moral distinctions between groups of people.” The FMA and its offspring are the equivalent of Constitutional asterisks.

“…nor deny to any person within its jurisdiction the equal protection* of the laws.” (*Certain restrictions apply. See Bible for details.)

It’s important to step back and remind ourselves that the original proponents of the 14th amendment took considerable pains to assure people that the Equal Protection clause would not strike down segregation laws nor anti-miscegenation laws. Indeed, Jim Crow laws had their ascendancy in the post amendment era. So what holds sway here – the idea of Equal Protection under the law or the intent of those who wrote the amendment? Before you answer, recall that Jim Crow laws included a spate of state constitutional amendments meant to remove all doubt or ambiguity about the “right” of the states to codify segregation.

If it seems like we’ve gone far afield from the original matter at hand, it’s because the idea of legal equality is far reaching. Similarly, the notion of selectively annotating the Equal Protection clause to allow legislatures to impose their “values” on the people through the law is also an idea without limits.

This folks, is the locus of the Culture War. It isn’t about gays and abortion. It’s about liberty and privacy and logical consequences of that. If the Equal Protection Clause means we cannot write one set of laws for heterosexuals and another set for the rest of us, do we then jettison the 14th Amendment as an unacceptable infringement on legislative prerogative? If “the moral judgment of the people, as expressed through the legislative body” says that the state should maintain a registry of “known homosexuals” (don’t laugh, it’s a bit far-fetched now - until they manage to flaunt the Supreme Court and Constitution and recriminalize all gay sex again), must that “moral judgement” hold sway no matter what?

Today it’s the Kansas legislature hopping mad that some eggheads in the courts said you cannot imprison gay people for decades for the same act that straight people only get a slap on the wrist for. Tomorrow, what will it be? A virginity test for unmarried female applicants to state universities? Drivers licenses only for those who have accepted Christ as their Lord and Savior?