One of the more measurable fundamental victories that the gay rights movement has made is the 2003 Supreme Court ruling Lawrence v. Texas, which ruled that laws criminalizing gay and lesbian sex and relationships are unconstitutional under the equal protection clause. It made “sodomy laws,” which existed in thirteen states, unenforceable — no one could be charged criminally for, essentially, being gay. Confusingly, however, the ruling doesn’t mean that “sodomy laws” are gone. Many are still on the books, and while they’re not legally enforceable, that doesn’t mean that they never disrupt the lives of gay citizens. As recently as 2009, over five years after the ruling that made it illegal, Texas’s sodomy law was invoked when police officers told two men who were asked to leave a restaurant for a public display of affection that they could be cited for “homosexual activity.” The police department later defended the officers by describing it as a “rookie mistake,” and a “poor understanding of the law,” not intentionally discriminatory.
Today, gay activists in Kansas are arguing that their own state’s sodomy laws, which also remain on the books, are indeed intentionally discriminatory. The Kansas Equality Coalition is fighting to have Kansas’s (already invalidated) law finally repealed. While Kansas’s governor, Sam Brownback, is notoriously homophobic, the KEC’s chairman, Thomas Witte, says he has a strong case against the outdated law. Speaking to the Lawrence Journal-World, Witte said:
“We believe that the current statute, while ultimately unenforceable, is an affront to thousands of law-abiding gay and lesbian Kansans… “This law technically criminalizes our relationships and leaves us open to harassment by unscrupulous authorities who may still make arrests under the provisions of this statute,”
And despite Brownback’s history of opposition to causes that help the gay community, Witte and other activists may actually have a good platform from which to argue. One of Brownback’s moves as governor — which stands alongside such gems as claiming in 2007 as a state Senator that countries in which gay marriage was legal had “plummeting” marriage rates and “80 percent of the first-born children are born out of wedlock” — has been to create an “Office of the Repealer.” (He was also in a highly publicized “Twitter tiff” with a high school student last week.) The department exists solely to identify laws that are “unreasonable, unduly burdensome, duplicative, onerous or in conflict to be repealed.” “Unconstitutional” isn’t actually included on the list, but it seems like a reasonable addition. So far the Office of the Repealer has shown no positive indication of planning to repeal the law. It’s entirely possible that there are laws that are higher priorities for economic reasons; part of the Office’s mission is to take action on laws that are “detrimental to the economic well-being of Kansas; hinder the growth of liberty and opportunities for Kansans and Kansas business.” But given that a law currently on the books has actually been declared unconstitutional by the US Supreme Court, doesn’t it seem like a pretty solid candidate for an initiative that identifies “unreasonable” legislature?
There are plenty of common-sense arguments to be made for equality. For instance, many activists are quick to bring up how much economic stimulus states that ban gay marriage are losing out on. Is there a similar argument to be made for all laws that make us second-class citizens? Everyone’s taxes, ours included, go towards the creation and upkeep of laws like Kansas’s outdated one criminalizing homosexuality. It’s entirely possible that DOMA could be repealed within the next few years, but several states could still have laws on the books that make any kind of same-sex affection or relationship illegal, even if they can’t be enforced. Isn’t that rather “unreasonable?” One of Governor Brownback’s criteria for the Office of the Repealer’s review is whether a law “[defies] a common-sense approach to governance.” At what point does that describe any law that dictates inequality?