Topeka ? Atty. Gen. Phill Kline doesn’t plan to appeal a unanimous ruling Friday by the Kansas Supreme Court that the state cannot punish illegal underage sex more harshly if it involves homosexual acts.

The American Civil Liberties Union hopes to get the case to a lower court next week to obtain the release of Matthew R. Limon, serving a prison sentence of 17 years and two months for performing a sex act on a 14-year-old boy in 2000.

Had one of them been a girl, Limon could have faced only 15 months behind bars under a special “Romeo and Juliet” law allowing lighter punishment for teenage sex. He already has served more than five years, and national groups on both sides of the gay rights debate were watching his case.

Kline said in a statement that while he needs to review the decision further, he doesn’t anticipate asking the U.S. Supreme Court to take the case. Kline has repeatedly described Limon as a predator because Limon’s criminal record already contained two similar offenses.

In a unanimous decision, the court ordered Limon resentenced as if the law treated illegal gay sex and illegal straight sex the same and gave the state 30 days to act. It also struck the language from the law that resulted in the different treatment.

Constitutional rights

Kansas’ high court said the different treatment violated Limon’s constitutional right of equal protection.

Justice Marla Luckert wrote the “immediate, continuing and real injuries” caused by the law outweighed “any legitimate justification” for it. Lower courts ruled the state could justify the law as protecting children’s traditional development, fighting disease or strengthening traditional values.

The law’s language “suggests animus toward teenagers who engage in homosexual sex,” Luckert wrote, adding, “Moral disapproval of a group cannot be a legitimate state interest.”

The case will return to Miami County District Court. County Atty. David Miller said he hasn’t decided how he’ll respond because he wants to thoroughly review the decision first.

Even if the prosecutor decides to charge Limon anew, he’s already served longer than the maximum sentence allowed under the Romeo and Juliet law. Limon is now at the state’s medium-security prison in Ellsworth.

“We are very happy that Matthew will soon be getting out of prison,” said James Esseks, of the ACLU’s Lesbian and Gay Rights Project, who represented Limon. “We are sorry there is no way to make up for the extra four years he spent in prison simply because he is gay.”

Consensual or exploitation

Both Limon and the other boy, identified only as M.A.R. in court documents, lived at a Paola group home for the developmentally disabled. In court, an official described M.A.R. as mildly retarded and Limon as functioning at a slightly higher level but not as an 18-year-old.

Limon’s attorneys described the relationship with the younger boy as consensual and suggested that they were adolescents experimenting with sex. Kline said Limon was exploiting the younger boy and said Limon’s previous offenses demonstrated a pattern of such behavior.

Kansas law makes any sexual activity involving a person younger than 16 illegal.

The 1999 Romeo and Juliet law mandates lesser penalties for illegal sex when partners are age 14 to 19 and their ages are less than four years apart. As written, it specifically applies only when the partners are of the opposite sex.

“This law was specifically designed to treat gay kids worse, and what this decision says is that is not a legitimate state interest,” Esseks said.

As a House member, Kline voted against the Romeo and Juliet law and said he does not support different sentences for same-sex or opposite-sex couples.

“However, I defended the actions of the Legislature,” he said.

Critics speak

Rep. Mike O’Neal, R-Hutchinson, chairman of the House Judiciary Committee, criticized the court’s decision.

He said the court had the authority to declare the “Romeo and Juliet” law unconstitutional, but not the authority to basically rewrite the statute. That should be left to the Legislature, he said.

“The court right now is a moving target. We can’t predict what they are going to do,” said O’Neal, who has been critical of recent court decisions that overturned the state death penalty and ordered more funding for schools.

The Kansas Court of Appeals rejected Limon’s appeal in 2002. A year later, the U.S. Supreme Court struck down a Texas law criminalizing gay sex, setting the stage for Friday’s ruling.

Matt Foreman, the executive director of the National Gay and Lesbian Task Force, said the Texas decision and Friday’s ruling “shore up the principle that gay people are entitled to equal protection.”

“But no one’s quite sure how firm that foundation is,” he said.

Mathew Staver, attorney for the conservative Orlando, Fla.-based Liberty Counsel, said the different treatment was justified by the state’s interest in protecting children and families. He also said the court doesn’t have the right to rewrite the statute.

“That’s a legislative function,” he said. “This is clearly a sign of an activist court system.”

But Patricia Logue, a senior counsel for Lambda Legal, said she hopes the decision will slow efforts in various states to enact legislation targeting gays and lesbians.

“A lot of the reasoning used here by the state comes up again and again,” she said. “What the court is saying is, ‘If you’ve got a better reason, you would have told us by now. The ones you’ve come up with are not good enough, and they amount to not liking gay people.”‘

Staff writer Scott Rothschild contributed to this story.