In a move that surprised no one, the Kansas Court of Appeals upheld the constitutionality of a Topeka solicitation ordinance as well as its underlying authority, the Kansas Sodomy law. The case involves Max Movsovitz, who was twice approached in a Topeka park by undercover police officers in April 1995. When Max agreed to participate in oral sex with one of the officers, he was arrested.

The Topeka ordinance states: "It shall be unlawful upon the streets or in other public places within the corporate limits of the city for any person to solicit or agree with any other person to participate in an act of prostitution or sodomy." Kansas defines sodomy as "oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex, or between a person and an animal, or coitus with an animal." Max challenged the constitutionality of both the ordinance and the Sodomy law, arguing that both violated: his federal and state rights to privacy, equal treatment under the law, and freedom of expression.

The Court of Appeals stated that Kansas can have anti-same-sex laws in order to protect public morality.  ACLU attorney Matt Coles, who represented Max, noted the discrimination:
"The court says that the law is constitutional because it is based on "morality."  But Kansas does not morally disapprove of sodomy in private since it allows anyone in Kansas who is heterosexual to do it.  Kansas only has a morality problem with sodomy when gay people do it; and that is exactly the kind of  "ok for me, not for you" discrimination that the constitution is supposed to prevent."

Added Max, "It seems to get more devastating at each level."

The Court of Appeals panel rejected all of the arguments. Here are their conclusions:

Right to Privacy

We conclude that there is no fundamental right to privacy under either the Kansas or United States Constitution which extends to private consensual homosexual sodomy.

Equal Treatment

We conclude that [the Topeka ordinance and the Kansas Sodomy law] are directed at certain conduct, not at a class of people; that Movsovitz is not a member of a suspect class; that homosexual sodomy and solicitation of sodomy are not fundamentally protected rights; and that protecting public morality is a rational basis for the ordinance and the statute under the Equal Protection Clause.

Freedom of Expression

Because the underlying sodomy statute is not unconstitutional, the solicitation of sodomy prohibited by [the Topeka ordinance] is not protected speech.

Max found out about the decision when he heard it on the Topeka (Channel 49) news. He phoned the station which, in turn, gave Max the Associated Press' number. The AP read more details to Max over the phone. Although he was in shock over the news, Max managed to email a few friends with the message: "Don't worry--we'll keep going!"

Wichita lawyer Scott Curry encouraged lesbigaytrans to remember that the Court of Appeals decision was expected: "No matter who won, it was certain to be reviewed by the Kansas Supreme Court. This means only that we have lost the battle at the Appellate level, but we have certainly not lost the war."

In their unsigned opinion, the three-judge panel suggested that the issue of changing the current Kansas Sodomy laws "should be addressed by legislatures and not courts." In response to that statement, Salina Journal Editor George Pyle commented, "if we had waited for legislatures, rather than courts, to address the inequality of laws that once discriminated against blacks, we'd still be drinking from separate water fountains."

Max Movsovitz can be reached at: mdm@cjnetworks.com.

Copyright 1998, Deb Taylor