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Saturday, October 22, 2005

 

Kansas judge needs to hear additional oral arguments

This from the New York Times regarding the Kansas court case where the Kansas Supreme Court ruled that gay and straight sexual offenses should be consequenced in the same manner. This is fair and I agree with it. However, the rationale offered by the Judge about the law is horrendous: According to the Times,

Justice Marla J. Luckert wrote for the unanimous court. Justice Luckert rejected the argument that homosexual sex is more likely to transmit diseases."The Romeo-and-Juliet statute is overinclusive because it increases penalties for sexual relations which are unlikely to transmit H.I.V. and other sexually transmitted diseases," Justice Luckert said, referring to the oral sex in the Limon case and sex involving two women. "Simultaneously," she continued, "the provision is underinclusive because it lowers the penalty for heterosexuals engaging in high-risk activities," notably anal sex.

1. Oral sex is only slightly more safe than other forms of sex, especially if a condom is not used, whether the participants be gay or straight.
2. Anal sex is risky whether it be gay or straight (and maybe this is what she is saying and I would agree) and so the penalities should be the same.

Just don't see what the types of sex have to do with anything here.

Maybe there is more context in the case that would make this make some sense but at first read this seems a clueless way to reason.

Comments:
Just don't see what the types of sex have to do with anything here.

You may not, however this is what the State of Kansas attempted to argue. They used a claim of public health as a "rational basis" for the unequal treatment under the law (along with 3 other basis).

The judge didn't offer the rationale -- a clue is in reading that "Justice Luckett rejected the argument...".

The amici curiae from the public health authorities said that Kansas was talking nonsense, and this was noted in the final ruling.

Jeepers -- maybe if you visted the ACLU site more often you'd know that is indeed "more context in the case"... The entire case history is all there to read.
 
Thanks for the link. I will look into it.
 
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