Topeka ? Matthew Limon isn’t talking about getting married, nor has the American Civil Liberties Union, which represents him in court, filed a legal challenge to the state’s prohibition on same-sex marriages.

Limon wants to get out of prison. He has asked the Kansas Court of Appeals to overturn his prison sentence of 17 years and two months for criminal sodomy.

Yet Atty. Gen. Phill Kline insists that Limon and the ACLU are attacking the Kansas law limiting valid marriages to unions between one man and one woman. He also suggests that if Limon and the ACLU are successful, the state cannot set an age of sexual consent, protect children from pedophiles, or ban polygamy, incest or bestiality.

Kline is, of course, trying to shift the debate over the case from its focus on why Limon should receive a sentence of more than 17 years for performing a sex act on a young teenage boy. Limon’s sentence could have been a year and three months had the same conduct involved a girl instead.

But for Kline, and undoubtedly some conservatives who support him, the case really is about whether the state eventually will sanction unions between two women or two men. In fighting a case that has nothing factually to do with marriage, Kline is anticipating a future court battle over gay and lesbian rights.

“These legal arguments, their positions here, are the very legal arguments needed to overturn marriage,” Kline said. “You cannot confine the logic to their narrow interest.”

Punishing gays

Tamara Lange, an ACLU attorney in San Francisco who represents Limon, finds Kline’s arguments frustrating because she believes the issue in the case is relatively simple — whether the state is constitutionally permitted to punish Limon more harshly because his crime involved a gay sex act.

“What the attorney general’s doing is saying, ‘I want to make this a big political issue because I can’t win on the law,”‘ she said.

In 2000, Limon and another boy, identified only as M.A.R. in court documents, were living at the Lakemary Center, a group home for developmentally disabled youths in Paola. Limon had just turned 18 and M.A.R. was 14 when the crime occurred. Limon had two previous, similar offenses on his juvenile record.

Kansas law makes any sexual activity involving a person under 16 illegal, regardless of the context.

But Limon could have received a much lighter sentence had he or M.A.R. been female because of a 1999 statute known as the “Romeo and Juliet” law. It provides lesser penalties for consensual sex when one partner is 19 or under and the other partner’s age is within four years.

Kline argues that even had Limon or M.A.R. been female, a prosecutor still might have filed the more serious charge of criminal sodomy. Lange disagrees, saying a prosecutor would be required to charge the lesser crime.

But what’s clear is that “Romeo and Juliet” applies only to heterosexual sex. The ACLU contends that the state cannot justify a harsher punishment when gay sex is involved — particularly following the U.S. Supreme Court’s decision in June striking down laws criminalizing gay sex, including one in Kansas.

“Quite clearly, the case is not about marriage,” Lange said.

Setting precedent

However, Kline has legitimate reasons to believe that Limon’s case could become a precedent in another legal battle should Limon and the ACLU prevail.

First, the ACLU argues that the U.S. Supreme Court’s decision in June requires the state to show there is a “rational relation to a legitimate government purpose” in order to treat gays and lesbians differently from heterosexuals.

Furthermore, the ACLU contends that under the U.S. Supreme Court ruling in June, the state cannot treat gays and lesbians differently simply in order to “express its own moral disapproval of homosexuality.”

Clearly — as Kline anticipates — both arguments could be made by someone challenging the state’s restrictions on marriage.

Indeed, what other real reason do states have for banning same-sex marriages, other than moral disapproval of gay relationships and homosexuality? What other reasons did states have when they criminalized gay sex? How else can Kansas justify punishing two adults so differently for the same type of sex act with a child?

Kline said in his legal brief that such distinctions reflected “a governmental preference for families which is as old as Western Civilization.” However, his statement begs the question of why, even with the definition of marriage as it is, two gay men or two lesbians cannot form a family.