This Kansas law makes being gay illegal. Legislators could fix it, but homophobia runs deep.

February 3, 2022 3:33 am

An unenforceable Kansas law criminalizes sex between gay people. Although a bill currently in committee would change that, some lawmakers still seem resistant. (Getty Images)

State law makes it illegal to be gay in Kansas.

That’s a moral outrage, and state legislators can fix the problem by immediately passing a bill in the House Committee on Corrections and Juvenile Justice. Thankfully, a U.S. Supreme Court ruling from 2003 makes the law unenforceable. But as long as it remains on the books, the LGBTQ community in Kansas has a giant target on their backs, painted there by state leaders.

Wait, wait, wait, you might say. Back up a second. Being gay is illegal in Kansas?

That’s right. State law defines several categories of criminal sodomy, including “Sodomy between persons who are 16 or more years of age and members of the same sex.” It’s a misdemeanor punishable by up to six months in prison.

Are you gay? Have you every had intimate relations with another gay person in Kansas? Congratulations! You’re a criminal. These laws once flourished throughout the United States, and they were a tool of discrimination against LBGTQ people. In Kansas, folks were prosecuted under these laws for no other reason than being themselves.

Specifically, sex between same-gendered adults would be a misdemeanor criminal offense punishable by up to six months in prison.

In a case called Lawrence v. Texas, the U.S. Supreme Court put an end to this nonsense. But despite calls to remove a flagrantly unconstitutional law from the books, former Gov. Sam Brownback didn’t recommend doing so in 2012 when his administration highlighted 51 measures for repeal.

Or as the New York Times delicately put it: “Mr. Brownback, who is a vocal opponent of same-sex marriage on religious grounds, declined to comment, and his spokeswoman would not say whether he would support repealing the law against same-sex sodomy, a misdemeanor that officially carries a prison sentence of up to six months.”

In other words, homophobia ruled the day.

Tom Witt, executive director of Equality Kansas, told KCUR that a Kansas same-sex criminal sodomy law has been used to discriminate against gay people. (Sherman Smith/Kansas Reflector)

A decade has passed since then, with the high court legalizing same-sex marriage in 2015. Kansas now has multiple, open LGBTQ legislators. Surely now, after all the water passed under the bridge, it’s time to show gay Kansans that they belong?

Maybe. Maybe not. A recent story from KCUR in Kansas City lays out the current state of affairs. Rep. John Carmichael, D-Wichita, has introduced a simple bill, HB 2009, that deletes the phrase I quoted above. It’s unfortunately languishing in a committee packed with other important bills.

Wrote KCUR’s Blaise Mesa: “The Kansas Bureau of Investigation says nobody has been convicted of same-sex criminal sodomy for at least five years. Still, Thomas Witt, executive director of Equality Kansas, said the provision has been used to discriminate against LGBTQ people even if they weren’t convicted.

“Witt said Kansans were arrested for same-sex relations even after the Supreme Court’s ruling, but the last time he heard that happened was in 2013.”

Can you believe that? No, really, can you believe that?

An unenforceable, unconstitutional Kansas law has been deployed to harass your fellow Kansans. Authorities did so as recently as nine years ago, a full decade after Lawrence v. Texas. Repealing this bigoted law can’t come soon enough.

I decided to check with members of the House Committee on Corrections and Juvenile Justice to see what they thought about the bill. I asked them two questions — first, if they supported Carmichael’s bill, and second, if they didn’t to explain why.

Five members of the 13-member panel responded. Carmichael and Reps. Boog Highberger, D-Lawrence, Annie Kuether, D-Topeka, Dan Osman, D-Overland Park, and John Wheeler, R-Garden City, all support making the change.

I should single out Wheeler here — he was the one Republican to respond, making the simple argument that as a lawyer he had taken an oath to “uphold the constitution and laws of the United States and the Constitution and laws of the State of Kansas. The Supreme Court of the United States has ruled on this issue years ago.” I gave Wheeler trouble in a column last week, and while I may have disagreed with him then, he absolutely nailed it this time.

So where are the other eight Republicans? Why is it difficult for them to stand up for the Constitution of the United States and their fellow Kansans?

In his reply to my questions, Highberger gave a depressing answer: “I think the reason that HB 2009 is still in the books is that quite a few of my colleagues still believe that homosexuality is immoral and a ‘lifestyle choice’ rather than something innate, and they don’t want to cast a vote that could be construed as condoning homosexuality.”

Here’s a message to those legislators Highberger mentions: It’s 2022, guys. LGBTQ people live throughout Kansas. They serve next to you in the House.

Show them some respect and repeal this outdated, insulting, homophobic law.

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Clay Wirestone
Clay Wirestone

Clay Wirestone serves as Kansas Reflector's opinion editor. His columns have been published in the Kansas City Star and Wichita Eagle, along with newspapers and websites across the state and nation. He has written and edited for newsrooms in Kansas, New Hampshire, Florida and Pennsylvania. He has also fact checked politicians, researched for Larry the Cable Guy, and appeared in PolitiFact, Mental Floss, and cnn.com. Before joining the Reflector in summer 2021, Clay spent four years at the nonprofit Kansas Action for Children as communications director. Beyond the written word, he has drawn cartoons, hosted podcasts, designed graphics and moderated debates. Clay graduated from the University of Kansas and lives in Lawrence with his husband and son.