I think you're looking at the current interpretation of the EP Clause incorrectly. For instance, O'Connor's concurrence in Lawrence noted:

This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e.g., Department of Agriculture v. Moreno, supra, at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.

Personally, I've always thought that O'Connor was probably the most perceptive EP jurist on the Court, and I think she's got a point. For instance, check out this language in Romer:

The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271 - 272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U.S. ___, ___ (1993) (slip op., at 6).

Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

Now that O'Connor's leaving the Court, her concurrences aren't quite as important as they once were, but Romer remains controlling precedent. It seems to me that the Court has put homosexuals into the same sort of quasi-suspect class as the mentally retarded (cf. Cleburne), which means that they're actually going demand a rational basis under the rational basis test. The distinction here between heterosexual and homosexual sex is anything but, and therefore would almost certainly fail any test based on Romer.

Can't this program parse simple HTML?! Geez. The paragraph beginning with "Amendment 2" should still be part of the block quotation of Justice Kennedy's opinion.

Joshua thinks that "The morality of sexual practices has long been a justifiable state interest.". Well, no. It's just traditionally been something they wanted to control, not something justifiable. Thank you for proving my beliefs about the modern crop of Republicans. First, the only people who have rights are people just like them. Secondly, they do want a modified theocracy. Their desire is for others to be allowed to attend their religious worship of choice or not but must live their lives according to what conservative fundamentalist Christians believe to be the correct way of life.

What's the limit on laws to govern morality, Joshua? By your reasoning the miscegenation laws could have been upheld as not being racist, but a matter of morality. Whose morality? I find it interesting that you apparently cannot differentiate between an act taking place in the public square (So to speak.) and one taking place behind closed doors when it comes to what would constitute reasonable government intrusion.

Actually Jim I don't favor this particular law that Kansas has passed. But I don't expect you to be able to differentiate between favoring a law and favoring the Constitutionality of a law, so I won't waste any time explaining it further.

I apologize for yelling at your software. It's been a long week and I'm kind of stressed, and I kind of snapped when it didn't post like it previewed.

No worries Steve, that problem with the HTML has long bothered me too. It seems a new blockquote tag is needed for each blockquoted paragraph.

Full disclosure: Glenn Reynolds cites Michael M. for the proposition that you can treat the sexes different in statutory rape cases, so why not sexual orientations? I think that doesn't fly because of my point about homosexuals being treated as a quasi-protected class in Romer, but it's something to think about.

I was specifically addressing your contention that the government has a justifiable reason for governing sexual morality, not the issue of constitutionality. This particular law addresses consensual sex between minors and those who have just left that status themselves. The sentence of yours that I quoted seems to be defending the right of the state to govern any private sexual practices between consenting adults so long as the majority finds them objectionable. If you meant that this was constitutional, that is one thing but you did not state that by "justifiable" you meant constitutional.

Steve, I don't recall homosexuals being treated as a quasi-protected class in Romer. The court applied a standard rational basis review. It was in Lawrence that one might argue the Court applied a "more searching" review. Justice O’Connor acknowledged that a "more searching form of rational basis review is required" when a law exhibits such a desire to harm a politically unpopular group. The Court's judgment implies a heightened scrutiny for laws discriminating against homosexually oriented individuals, but this implication was only stated in a concurrence, and was never explicitly held anywhere.

Josh: " I don't recall homosexuals being treated as a quasi-protected class in Romer."

Your other points are correct, but I think this one is the key so I'm going to focus on it.

The Court (this Court especially) isn't going to actually call them "quasi-protected." Notice that both Cleburne and Romer come after the later Burger Court shuts down new EP categories?

We all know that the more liberal 4 wouldn't mind new EP categories, but the conservatives have serious reservations. You're never going to get O'Connor or Kennedy to set up a new EP category. So, instead, they did something almost as radical and actually put teeth in rational basis review.

Functionally, what they've done are create minor categories of EP, bounded by Cleburne on one end and Heller on the other. I think it's extremely significant that the section of Romer that I quoted cites Heller as the basis for this unusually stringent application of rational basis review. Check out the article for more info. (Speaking of that article, I forget to mention Plyler. Doh!)

I see your point. I wonder how the "new" Court will treat this.

Sorry about the excessive break tags in that last post. Apparently preview doesn't recognize carriage returns in the same way as the displayed page does. I just used an older post as a sandbox to prove this, and now I won't do it again. Sorry for the mess in the other post.

That's a very interesting question, one for which nobody outside of the Executive (and maybe inside, too) knows the answer.

"The morality of sexual practices has long been a justifiable state interest. Under Justice Luckert's reasoning, there is no legitimate state interest in banning public nudity."

Couldn't the state have a legitimate interest in banning public nudity though outside of the perceived morality of it? I guess I've always thought of the public nudity prohibitions along the same lines as disturbing the peace, and is not something that I think has anything to do with 'morality'. Prohibiting pedophilia seems also justifiable outside of the immorality of it since it's reasonable to say that children do not have the right to give consent and are therefore harmed by pedophilia. I have trouble though thinking of another basis besides people wanting to impose their morality on other people for treating homosexual acts different from heterosexual ones.

I'm not disagreeing with Josh's contentions that the courts are not the place to debate these kind of issues, and definitely not with his analysis of the legal points involved as far as the Equal Protection Clause and this law. I don't know but I wouldn't be surprised if the bans against public nudity were put in place explicitly for 'moral' reasons. I also have to admit that if morality is removed as a justifiable state interest that my logic allows incest. I don't know that I want to throw people who commit incest in jail though; they're are plenty of other ways that people can and do let their disapproval of such victimless (IMO) acts be known outside of using the power of government to punish them.

I'm still mulling over 17 years in prison for what must be fairly normal behavior for gay teens.

This seems to be gender discrimination as much as miscegenation is race discrimination.

The mouth of a woman is biologically no different than the mouth of a man. If I understand this correctly, the man convicted performed oral sex on the "victim." If it were a female of the same age who performed the same act, the sentence would be much less.

Thus, the ACT would be exactly the same but a different sentence given b/n the gender of the parties involved. That's gender discrimination.

I think DaveL and JohnS pretty much hit the nail on the head.

Laws against pedophilia are justified because it is assumed to be akin to rape given the ignorance and bad judgment that a child brings to sexual situations. Laws against public nudity make sense because many people do not wish to see nudity and because this is to them an imposition more grave than forcing nudists to temporarily wear clothes.

(But laws against private sexual acts, however, make about as much sense as laws against private nudity, which is none of my damn business.)

As I commented to Josh some time ago by e-mail, it has become increasingly difficult to satisfy the rational basis test of late in part because there seems to be strong opposition to making homosexuals a protected category--yet equally strong opposition to laws like the one we are discussing, which are manifestly wrong even if traditional tests would return the result that they are constitutional.

But do we accept as a method of constitutional interpretation that the document must never instruct us to let pass a manifest injustice? (And if we say yes here, then what of the process of amendment? Is it to be entirely abandoned?)

I should also note that to some degree, I think the abandonment of the three-tiered system of evaluation in equal protection laws is perhaps a good thing; I have never much been convinced that the three tiers can be derived in any evident manner from the text of the document itself. A better system must surely exist--I'm just not as sure that we are moving toward it here.