concurring: I concur that the constitutionality of K.S.A. 2002 Supp. 21-3522 should be upheld by the court.
Initially, I have no difficulty concluding that the statute in question does not violate the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution, as the dissenting opinion ultimately concludes. This argument is not advanced by Limón or by any amicus curiae brief filed in this case. A proper due process analysis would require this court to conclude that Limón has a constitutionally protected liberty interest to engage in homosexual activity with a minor. Clearly, no such right exists. If K.S.A. 2002 Supp. 21-3522 is unconstitutional, it is due to a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, not the federal Constitution’s Due Process Clauses.
Limón advances two arguments in this, case, both grounded in equal protection. First, Limón argues that K.S.A. 2002 Supp. 21-3522 unlawfully discriminates based upon sexual orientation. Second, Limón argues that the statute unlawfully discriminates based upon gender.
Limon’s argument that the statute discriminates based upon gender is without merit. K.S.A. 2002 Supp. 21-3522 discriminates against sexual activity between members of the same sex, whether the partners be male or female. Thus, the statute discriminates based upon sexual orientation but not based upon gender. If an 18-year-old female engages in sexual activity with a 14-year-old female, the female cannot be prosecuted under 21-3522. Thus, the statute treats same-sex activity between females equally with same-sex activity between males. There is no discrimination based upon gender.
The central issue in this case is whether K.S.A. 2002 Supp. 21-3522 unlawfully discriminates based upon sexual orientation. In State v. Limon, Case No. 85,898, unpublished opinion filed Feb*386ruary 1, 2002 (Limón I), this court never applied an equal protection analysis to 21-3522. Instead, the court concluded that any such analysis was foreclosed by Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), which denied constitutional protection to homosexuals engaged in sodomy, even in the privacy of the home.
This case was remanded to the Court of Appeals for further consideration in light of Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003), which overruled Bowers. Although Bowers is now removed from consideration, the majority opinion in Lawrence provides no additional support for Limon’s arguments that K.S.A. 2002 Supp. 21-3522 violates equal protection.
Lawrence is not applicable to either the law or the facts of this case. The facts are clearly distinguishable. Lawrence involved two consenting adults having sexual relations in the privacy of their own home. This case involves an adult having sex with a minor in a state-run facility. More importantly, Lawrence is not applicable to the law of this case. Lawrence was not decided on equal protection grounds. Instead, it was decided on due process and privacy grounds. This distinction is significant and controls the outcome of this case.
Lawrence did not confer suspect class status on homosexuals, and in fact it specifically declined to do so. Therefore, Limon’s arguments are not viewed under a strict scrutiny analysis but must be viewed pursuant to the rational basis test. The question before us is not whether a rational basis exists to punish a young adult for engaging in homosexual activity with a child. The question is whether a rational basis exists to treat homosexual activity with a child differently from heterosexual activity with a child.
Under the rational basis test, legislation is presumed to be valid and will be sustained if tire classification drawn by the statute is rationally related to a legitimate state interest. Romer v. Evans, 517 U.S. 620, 632-33, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996). This does not mean that a court must grant unrestrained approval of all legislative action. A court’s duty to nullify an unconstitutional statute is one of the cornerstones of our governmental system of checks *387and balances. However, those attacking the rationality of a legislative classification have the burden to negate every conceivable basis which might support the statute. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 35 L. Ed. 2d 351, 93 S. Ct. 1001 (1973). A legislative classification must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 124 L. Ed. 2d 211, 113 S. Ct. 2096 (1993).
“Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. [Citations omitted.] ... In other words, a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. [Citations omitted.] “ ‘Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.’ ” [Citations omitted.]” Beach Communications, Inc., 508 U.S. at 315.
Furthermore, under a rational basis analysis, a court is not bound by explanations of a statute’s rationality offered by the legislature, litigants, or other courts, but may also consider any other rational purposes possibly motivating enactment of the challenged statute. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 463, 101 L. Ed. 2d 399, 108 S. Ct. 2481 (1988). Finally, a law will be sustained under the rational basis test if it can be said to advance a legitimate interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. Romer, 517 U.S. at 632.
The argument that K.S.A. 2002 Supp. 21-3522 is unconstitutional focuses on Limon’s rights at the expense of the victim’s. Lawrence holds that homosexual activity between consenting adults in the privacy of the home cannot be prosecuted as a crime. It is one thing to recognize that the government should have no interest in private sexual activity between consenting adults. It is another thing to argue that the government has no rational basis to distinguish between heterosexual activity and homosexual activ*388ity when it comes to protecting the rights of 14-and 15-year-old children.
As the majority opinion suggests, at this age a child’s sexual orientation is more than likely not fully developed. Adolescents are at a higher risk for acquiring sexually transmitted diseases than adults.1 All sexual activity imposes health risks. However, as the majority opinion points out, there are certain health risks more generally associated with homosexual activity than with heterosexual activity, especially among males.2 This does not mean that all homosexual activity between males results in sexually transmitted disease, but the risk appears to be increased. Admittedly female-with-female sex has a lower potential for spreading sexually transmitted disease. However, a legislative classification not involving fundamental rights is not required to be drawn with precision. Furthermore, excluding from 21-3522 only same-sex activity between males would involve gender discrimination which presumably the legislature should try to avoid.
I cannot embrace every rational basis suggested in the majority opinion for upholding the constitutionality of K.S.A. 2002 Supp. 21-3522, and in fact I disagree with many of the positions advanced in the majority opinion. However, if the only rational basis justifying the statute is the legislature’s intention to protect children from increased health risks associated with homosexual activity until they are old enough to be more certain of their choice, it is within the legislature’s prerogative to make that determination. This rationale, although tenuous in some respects, provides a “reasonably conceivable state of facts” sufficient to justify the statutory classification.
*389In Limon’s case, the sentencing disparity between a conviction of sodomy and a conviction under 21-3522 is alarming. However, this reflects a problem with our state’s sentencing guidelines rather than impheating the constitutionality of the statute. The legislature can address the inequity suffered by Limón and others in his position without this court declaring the present statute unconstitutional.
In summary, Limón makes many persuasive arguments that the classification under 21-3522 should not survive judicial scrutiny even under the rational basis test and therefore violates the federal Constitution’s Equal Protection Clause. However, considering the degree of legislative deference required by this analysis, and given the existing legal precedent to guide this court, I conclude that the statute withstands constitutional challenge. As stated by this court in Limón I, “We have no indication that the United States Supreme Court or the Kansas Supreme Court would adopt the position taken by Limón.” We still do not have any such indication. This court is in the same position as when Limón I was decided—without legal precedent or authority to declare K.S.A. 2002 Supp. 21-3522 unconstitutional.
To paraphrase the court’s conclusion in Limón I, this opinion does not deal with the wisdom of the statute involved, as that is left to the legislature in our governmental system with its separation of powers.
2002 Sexually Transmitted Disease Surveillance Report, Special Focus Profile, STDs in Adolescents and Young Adults, U.S. Centers for Disease Control and Prevention, http://www.cdc.gov/stats.adol.htm.
According to tire U.S. Centers for Disease Control and Prevention, the estimated number of diagnosed AIDS cases through 2002 among males caused by male-to-male sexual contact is 420,790. The estimated number of diagnosed AIDS cases through 2002 among males caused by heterosexual contact is 50,793. See 2002 HIV/AIDS Surveillance Report, U.S. Centers for Disease Control and Prevention, http ://www. cdc.gov/hiv/stats .htm.