Childish and spiteful.

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By Marie Diamond on Jan 23, 2012 at 1:07 pm

In their crusade against excessive government, several Republican-led states have made it a priority to purge any laws they deem irrelevant or outdated from their books. But they’ve gone out of their way to spare laws that promote conservative social mores and discrimination against gays.

Last Friday Kansas Gov. Sam Brownback (R) released a list of 51 laws he recommends that the legislature repeal. An obsolete state statute criminalizing sodomy was not among them:

Gov. Sam Brownback created the Office of the Repealer to recommend the elimination of out-of-date, unreasonable and burdensome state laws that build up in any bureaucracy over time.

For gay men and lesbians, there seemed one particularly obvious candidate: Kansas Statute 21-3505.

That would be the “criminal sodomy” statute, which prohibits same-sex couples from engaging in oral or anal sex. The law was rendered unenforceable nearly a decade ago by a United States Supreme Court ruling, but it remains enshrined in the state’s legal code.

Since the Supreme Court’s ruling in Lawrence v. Texas struck down anti-sodomy laws as unconstitutional, Kansas’ statute has no force and effect. Yet Republicans are determined to keep it on the books as a purely symbolic gesture of their condemnation of gay couples. Of course, anti-sodomy laws also make oral and anal sex among consenting heterosexual couples a crime as well.

Kansas Republicans’ decision to keep the sodomy law in place is reminiscent of a move by Florida Republicans last year. During a culling of outdated and rarely enforced laws, GOP lawmakers spared one measure from the 1800s that makes “cohabitation” of unmarried couples a a second-degree misdemeanor, punishable by $500 or up to 60 days in jail.

The Kansas Equality Coalition, an LGBT advocacy group, hopes to pressure Gov. Sam Brownback (R) into repealing a state law that prohibits people of the same sex from engaging in intercourse.

“We believe that the current statute, while ultimately unenforceable, is an affront to thousands of law-abiding gay and lesbian Kansans,” Thomas Witt, chairman of the Kansas Equality Coalition, told LJWorld.com.

Because of the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas, which struck down an anti-sodomy law in Texas, the Kansas law is ultimately unenforceable. But the law is still on the books, and still presents a problem, according to Witt.

“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,” he explained.

Brownback plans to push for repeal a number of laws he considers unreasonable or burdensome, but whether the sodomy law will be included on his repeal agenda is unknown. The socially conservative governor previously blamed same sex relationships for children being born out of wedlock.

In 2004, the Kansas Court of Appeals held that the state could punish illegal sex with children more harshly when it involved homosexual acts. The American Civil Liberties Union had fought against the law, claiming the differences in sentencing for homosexual and heterosexual sex crimes represented unconstitutional discrimination.

Rachel Maddow on Kansas’ anti-abortion legislation.

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