Head Cases

As if the blow job he enjoyed in a park -- and the trip to jail he earned for getting it -- weren't enough exposure for Robert Rowe, he has decided to tell his story to the Kansas Supreme Court.

Rowe had just zipped up his pants when a Johnson County park ranger found him with another man in a bathroom near Shelter No. 2 at Shawnee Mission Park in April 2001. The ranger asked what was going on, and in a fit of honesty Rowe told him.

Had Rowe been caught in the park with a woman, Johnson County prosecutors would most likely have charged him -- if they had charged him at all -- with "lewd and lascivious behavior" (having sex or exposing genitalia in public).

Instead, he was convicted for breaking Kansas' rarely enforced sodomy law.

The difference in charges had no practical effect on Rowe's punishment. Both are Class B misdemeanors, which carry penalties of up to six months in jail.

But because the Johnson County District Attorney's office prosecuted him under the sodomy law, Rowe believes he has a case worth challenging. That law applies to gay couples -- and only gay couples -- whether they are having an anonymous tryst in a park bathroom or making love in their own bedrooms.

Rowe argues that singling out gays for special prosecution violates the 14th Amendment of the U.S. Constitution, which says that no state can "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Rowe's attorney, Darrell Smith, submitted an appeal to the Kansas Court of Appeals this past September, emphasizing in his brief that "Kansas has no legitimate interest in channeling the majority's animosity for the homosexual community into criminal sanctions for simply being homosexual."

But the three-judge panel disagreed, ruling on December 6 that homosexuals could be treated differently from heterosexuals because they are not a "suspect or quasi-suspect class under the Kansas Constitution."

Smith laughs at the thought. "That's their take on it," he summarizes. "Homosexuals are not a group."If homosexuals were a suspect class -- a status granted based on race, for example -- the state would have to prove that discriminating against them serves "a compelling governmental interest." If they're not a suspect class, though, it's easier for the state to show that the law has "a rational relationship to a legitimate objective." The appellate court apparently agreed with the lower court's opinion that the sodomy statute "advanced the government's legitimate interest of promoting morality and suppressing AIDS."

Rowe disagrees and wants to press his case. He thinks he has a good argument, one that will emasculate the law under which anal and oral sex are fine for married couples, eighteen-year-old boys and geriatric widows, or any other male-female coupling -- but not for gays and lesbians.The last year sodomy was illegal in every state was 1951. By 1986, 26 states had repealed their sodomy laws. Although oral and anal sex are still forbidden in thirteen states, only four of them -- Kansas, Missouri, Texas and Oklahoma -- make a clear distinction between heterosexual and homosexual sodomy.

Arkansas was the most recent convert. In July 2002, its Supreme Court ruled in favor of seven gay men and lesbians who had filed a lawsuit to overturn the sodomy law.

"It's one thing to be behind the curve. It's another to be behind the curve and behind Arkansas," Smith says of the Kansas and Missouri laws.

If Smith will cut him a deal on his mounting legal fees, Rowe is willing to pursue his own case as far as it takes to make the point.

If he wins, it's not going to return the 75 days he spent in jail. It's not going to salve the embarrassment he felt at having the details of his park dalliance publicized.

"I've served my time and I've served my probation, and there's nothing that can be done about me. I don't want this hanging over the heads of my brothers and sisters in the community," Rowe says.

Much is at stake. If the Kansas Supreme Court hears Rowe's case and upholds the appellate court's decision, it could conceivably open the door for discrimination against homosexuals, Smith says.

"If homosexuals are not a group, not a class, not a suspect class, doesn't that mean it is perfectly fine to discriminate against them in employment?" Smith asks. "Doesn't that mean they should not be allowed to adopt children because they are committing criminal conduct in their home? If the Supreme Court adopts their stance, doesn't that leave us with that potential ripple effect?"

The 55-year-old Rowe spent most of his life deeply closeted. In the 1960s and '70s, parks were among the few places men could meet other men interested in homosexual encounters. Rowe, who grew up in Kansas City, Kansas, admits he was a frequent visitor to the Liberty Memorial, Penn Valley Park, Rosedale Park, Shawnee Mission Park and Antioch Park.