On Friday the Supreme Court of Kansas ruled that traditional morality is irrational. Perhaps this is putting it a bit starkly, but the implications of the Court’s ruling in the case of State v. Limon deserve to be put starkly for they are as clear as they are bleak. In going out of its way to invalidate the State’s “Romeo and Juliet” law and then taking it upon itself to rewrite that provision to suit its own preferences the Court has made two things clear. First, the Court is disdainful of traditional moral norms. Second, the Court’s desire to act as a legislative body, rather than a judicial body, is not confined to the realm of school finance.

The immediate result of the Limon decision, as it pertains to Mr. Limon himself, is not the focus of my concern. In summary, Mr. Limon, as an 18 year old, had sexual contact with a 15 year old. This is a violation of Kansas law for which he was convicted and sentenced. Under the State’s “Romeo and Juliet” provision illegal sexual conduct of this type is subject to a lesser sentence if the parties involved are close in age and of the opposite sex. In Mr. Limon’s case he fit the age requirement, but his victim was male. The result was a longer sentence. People of good will can disagree on what the public policy of the State should be on this issue. (Although I would add that in Mr. Limon’s case his history of two prior convictions for similar conduct makes him a relatively unsympathetic character). The point of my comments here is to clarify the truly grievous implications of the reasoning used by the Court to arrive at its decision.

To engage in this consideration it is necessary to consider both the substance of the Court’s decision and the remedy it selected to enforce that decision. I will look at the second issue first. Having decided that the “Romeo and Juliet” provision violated both the U.S. and Kansas Constitutions the Supreme Court did not do what Court’s normally do and simply invalidate the law. Rather, the Court took it upon itself to redraft the law to fit the Justices’ preferred legislative purpose. Of course, courts routinely judge the constitutionality of past legislation, this is certainly proper. However, that is as far as the judicial power extends. Courts can create a void in the law by striking down particular statutes; but they cannot seize the reins of legislative power and attempt to fill that void with legislation of their own choosing.

In the Kansas context this action by our Supreme Court has special significance because it provides evidence that the Montoy decision (in which the Court ordered the Legislature to spend a particular dollar amount on K-12 education), was not an aberration. Rather, a pattern is now emerging. It is becoming commonplace for this Court to substitute its policy judgment for the policy judgment of the Legislature; thus crossing the traditional dividing line between legislative and judicial power. In short, the separation of powers crisis that came to the forefront in Montoy, is now spreading its tentacles to other areas of the law. As I have stated previously on many occasions, what is at stake in this debate is no matter of mere abstract principle; rather the very meaning of representative democracy has been placed at risk.

But, the threat of Limon relates not only to separation of powers, but to the even more basic issue of the relationship between law and moral discernment. The Adams quote at the beginning of these remarks is merely another way of saying what I think simple logic demands. That all political questions are at heart moral questions; that, to put it provocatively, not only can we legislate morality, but properly understood we legislate nothing but morality. The very act of passing laws requires moral choice, and such moral choice always has the effect of favoring some types of people and behavior over other types of people and behavior. The Kansas Supreme Court is now in the process of attempting to decouple law and morality, it is a fool’s errand.

That having been said, taking the Court at its word when it says that, “moral disapproval of a group cannot be a legitimate government interest” would be to give them too much credit. For of course this is not what the Court really means. Rather, the Court is making a bold statement about judicial power, about its right to substitute its own moral preferences for those of the people as expressed via their elected representatives. While the Court may not see moral discernment as a proper legislative function, they certainly express no qualms about using their own powers of moral discernment to arrive at judicial rulings. Indeed in the Limon case itself the Court offers us a great deal of moral judgment on issues such as the appropriate sexual development of children, the morality of sexual relationships between children and adults, and the promotion of parental responsibility and procreation. In each of these cases the Court is perfectly willing to offer its two cents worth on the values appropriate to these areas.

In understanding the import of the Limon decision it is crucial to recognize the manner in which Court has signaled it will view the equal protection clause going forward. It will view it in a fashion dripping with its own moral preferences. Indeed, in dicta, the Court expressed its agreement with the proposition that “the promotion of majoritarian sexual morality is not even a legitimate state interest and that criminal legislation on matters such as fornication, bigamy, adultery, adult incest, bestiality, and obscenity cannot survive rational-basis review.” (A note to those who are rubbing their eyes in disbelief: Yes this is actually in the Kansas Supreme Court opinion). In making this statement the Kansas Supreme Court may well be the first such court in the county to indicate agreement with Justice Scalia’s warning regarding how far reaching the Lawrence v. Texas decision on decriminalization of sodomy really was. The difference being of course that what Justice Scalia presents as an outrage the Kansas Supreme Court embraces with warm affection.

For those who worked so hard to promote the marriage amendment in Kansas this has dire implications. The reasoning that invalidated Mr. Limon’s sentence could certainly be put to work to invalidate the prohibition on same sex marriage in the Kansas Constitution. As a strong supporter of that amendment my core argument was that: “once we determine that marriage can not be denied to persons as long as they claim an abiding love and commitment for one another, then we have lost the ability, in principle, to impose any limits at all on the definition of marriage. It is axiomatic that a definition so broad as to encompass everything means nothing. It is for this reason, among other, that the recognition of homosexual marriage shatters the very meaning of marriage at its most basic level.” This argument and most of the others that I heard advanced for the marriage amendment would certainly be put to test by a legal standard that defines making moral distinctions between groups of persons as an illegitimate legislative purpose.

I will close by noting that what makes the Limon case so striking is the extent to which the Kansas Supreme Court went our of its way to adopt an expansive interpretation of the U.S. Supreme Court’s ruling in Lawrence v. Texas. The Kansas Court of Appeals had already upheld the statute in question using very traditional legal analysis. The factual and legal context of Limon and Lawrence were easily distinguishable. Lawrence was a due process case; Limon is an equal protection case. Lawrence involved the criminalization of specific conduct; Limon merely involved sentencing for conduct everyone apparently agrees is properly criminal. Lawrence involved conduct between two adults; Limon involved conduct between and adult and a child. The list could go on. In other words, a court taking a cautious and prudential view of the development of the law of equal protection could have and would have arrived at a different result.

But as we have been learning in recent months the Kansas Supreme Court is far from cautious when it comes to advancing its own policy objectives. And here I must agree with Justice Scalia that, "in a truly democratic society - or at least the one in America - one way or another the people will have their say on significant social policy. If judges are routinely providing the society's definitive answers to moral questions on which there is ample room for debate ... then judges will be made politically accountable." The current situation in Kansas, where justices increasingly act as policy makers, while attempting to hide behind a veneer of judicial independence in order to avoid political accountability is not sustainable.

Lance Kinzer
State Representative
District 14
www.lancekinzer.com