dissenting: I respectfully dissent.
Matthew Limón was bom on February 9, 1982. Both he and M.A.R., whose date of birth is March 17,1985, are mildly mentally disabled. Limón and M.A.R. were residents of a school for the developmentally disabled. On Februaiy 16, 2000, Limón asked M.A.R. if he could perform oral sodomy on M.A.R. M.A.R. consented, and when he told Limón to stop, Limón did so. The incident came to the attention of the police. Limón admitted what he had done and was charged with criminal sodomy pursuant to K.S.A. 21-3505(a)(2), which provides in part: “(a) Criminal sodomy is: ... (2) sodomy with a child who is 14 or more years of age but less than 16 years of age.”
*390Limón filed a motion to dismiss the charge, arguing that he should have been charged with unlawful voluntary sexual relations under K.S.A. 2002 Supp. 21-3522(a)(2), the “Romeo and Juliet law.” This law states in part:
“(a) Unlawful voluntary sexual relations is engaging in voluntary ... (2) sodomy . . . with a child who is 14 years of age but less than 16 years of age and die offender is less than 19 years of age and less than four years of age older than tíre child and die child and the offender ... are members of die opposite sex.”
The purpose of the Romeo and Juliet law was apparently to reflect the judgment that consensual sex between males and females of the specified ages should have a less severe punishment than consensual sex between older males (usually) and young females. A violation of K.S.A. 2002 Supp. 21-3522(a)(2) (tire Romeo and Juliet provision) is a severity level 9 person felony. A violation of K.S.A. 21-3505(a)(2) (criminal sodomy) is a severity level 3 person felony. With no previous criminal record a level 9 crime has a sentencing range of 5 to 7 months with presumptive probation. A level 3 crime has a range of 55 to 61 months with presumptive imprisonment.
Limón argued unsuccessfully to the trial court that the greater penalty for being of the same sex violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by discriminating based on his sex and sexual orientation.
The case was tried on stipulated facts and Limón was convicted as charged. Limón had two previous adjudications for sexual relations with minors. Had Limón been of the opposite sex from M.A.R., with his criminal history and crime severity level, his sentence range would have been 13 to 15 months’ imprisonment. Since he was the same sex as M.A.R., the sentence range was 206 to 228 months. The court imposed a sentence of 206 months—17 years and 2 months.
Limón appealed to our court. State v. Limon, Case No. 85,898, unpublished opinion filed February 1, 2002. We affirmed the sentence and denied the constitutional argument on the basis that Bowers v. Hardwick 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed.2d 140 (1986) had denied constitutional protection to persons claiming discrimination based on homosexuality.
*391Review was denied by the Kansas Supreme Court. An appeal was taken by Limón to the United States Supreme Court, which granted his petition for certiorari, vacated our judgment, and remanded the case to this court for reconsideration in light of the decision in Lawrence v. Texas 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003). Lawrence essentially decriminalized consensual homosexual acts between adults by declaring unconstitutional the Texas statute which made them a crime. Lawrence also explicitly overruled Bowers as having been wrongly decided. 156 L. Ed. 2d at 525.
Limón does not contend there should be no punishment for his acts. This was reemphasized at oral argument by his counsel. It is the great difference in punishment, based on the sex of the participants, that is challenged. This is important to remember because the State and the majority often appear to approach this appeal as if the issue was whether same-sex sexual relations between adults and minors should be decriminalized. As will be seen, this leads to what appear to be inappropriate arguments being put forward in defense of the disparate sentences.
The State presents three threshold arguments: (1) The facts of the instant case are significantly different from those in Lawrence, making Lawrence inapplicable; (2) the Lawrence Court excluded sex with minors from the scope of the ruling; and (3) “[t]his court cannot interfere with the legislative function because that function is left to the legislative branch pursuant to the separation-of-powers doctrine.”
Considering the first argument, there are obviously different facts in Lawrence. But there are principles that serve as the basis for Lawrence and the overruling of Bowers which appear to be applicable to Limon’s case. The United States Supreme Court has directed us to reconsider this case in light of Lawrence. I presume it wishes us to apply those principles to our case as appropriate. They will be discussed in detail below.
The second argument is that Laiorence stated it did not involve minors and that this admonition would make it specifically inapplicable to the instant case. Lawrence involved the decriminalization of consensual homosexual sex between adults. The Supreme *392Court’s disclaimer in Lawrence appeared to serve as a notice that the decriminalization did not extend to laws outlawing sex with minors. There is no conflict with that ruling and the relief being sought here. This case does not deal with decriminalizing sex with minors either. It deals only with great differences in sentences based on the sex of the participants.
As to the separation of powers, this principle is respected and followed every working day in the Kansas courts. An apt example is the first appellate decision in this case where, after determining there was no constitutional bar to die disparate sentence due to Bowers, we deferred to the legislative determination that it was appropriate. Because of Lawrence there is now a constitutional question. The State’s argument that “[t]his court cannot interfere with the legislative function because that function is left to the legislative branch pursuant to the separation-of-powers doctrine,” is circular reasoning and begs the question on the issue involved. The matter before us is whether part of the legislation here violates the United States Constitution as interpreted by the United States Supreme Court in Lawrence. That which violates the Constitution is not a proper exercise of the legislative function.
As was established in the seminal case on the separation of powers between the courts and the legislative branch, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), the courts must be able to review legislative enactments for their adherence to the Constitution or there is no effective protection of the people’s constitutional rights from legislative overreaching. The 200-year-old principle of judicial review is a basic safeguard of the rights of Americans.
The amicus curiae brief of 25 of our Kansas state legislators notes Justice Douglas pointed out that the United States Supreme Court does “not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” Griswold v. Connecticut, 381 U.S. 479, 482, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). However, Justice Douglas went on in that same opinion to speak for the Court in striking down the state of Connecticut’s anti-birth control laws as being unconstitutional. 381 U.S. at 481-86. As demonstrated by *393the legislators’ brief, while there is usually deference given to legislative judgments involving the wisdom or need for laws, this deference is not unlimited. It does not apply to unconstitutional laws.
The threshold issues raised by the State do not prevent a review of this case in light of the Lawrence decision.
In applying Lawrence, we must apply principles of a decision dealing with consensual acts between adults to our case of consensual acts between a young adult and a minor. Our focus is not on whether the act involved is criminal; due to the age of one of the participants, it is. The issue we must resolve is if it is constitutional that the sentence for the commission of an identical act can be more than 15 times as long because the participants were of the same sex.
We first turn, as did the Lawrence Court, to the core holdings in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), and Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996). Casey appears to have limited applicability as it deals with personal autonomy issues involved in a reproductive freedom context. Our case involves criminal activity with a minor. Casey, however, does indicate that matters involving sexual morality are not the exclusive domain of legislatures.
The issues involved in Romer are more to the point. There, the Court struck down legislation aimed specifically at homosexuals, which deprived them of rights in the political process. The basis for that decision was the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Romer appears to stand for the proposition that legislation impacting on sexuality is subject to analysis for constitutionality when it discriminates between different classes or groups of citizens. 517 U.S. at 631-636. This is particularly true in a criminal justice context where the stakes can be quite high, even when the penalties may not seem great. Lawrence, 156 L. Ed. 2d at 523-24. In the instant case, where we are talking about many years of incarceration, it is certainly true.
Lawrence, which dealt with a criminal prosecution, was decided on the basis of the Due Process Clauses of the Fifth and Four*394teenth Amendments. 156 L. Ed. 2d at 525-26. Justice O’Connor, in her concurrence, also implicated the Equal Protection Clause. 156 L. Ed. 2d at 526. The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.” Sections 1 and 2 of the Bill of Rights of the Kansas Constitution provide a state counterpart to the federal provision. “[T]hese two provisions are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law.” Farley v. Engelken, 241 Kan. 663, 667, 740 P.2d 1058 (1987). The Fifth and the Fourteenth Amendments have essentially the same language as to due process.
The United States Supreme Court applies three levels of scrutiny or review when examining legislative enactments which treat differently classified persons unequally to determine if there is a denial of constitutional due process or equal protection. Classifications involving “suspect” classes or fundamental rights are examined under “strict scrutiny,” which shifts the presumption against a statute’s usually presumed constitutionality and requires the State to demonstrate that the classification is necessary to serve a compelling state interest. Shapiro v. Thompson, 394 U.S. 618, 634, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). Fundamental rights recognized by the Supreme Court include marriage, contraception, voting, and travel. See Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967); Griswold, 381 U.S. 479; Hill v. Stone, 421 U.S. 289, 44 L. Ed. 2d 172, 95 S. Ct. 1637 (1975); Shapiro, 394 U.S. 618. The suspect classes which the Court has recognized include alienage, race, and ancestry. See Graham v. Richardson, 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971); McLaughlin v. Florida, 379 U.S. 184, 13 L. Ed. 2d 222, 85 S. Ct. 283 (1964); Oyama v. California, 332 U.S. 633, 92 L. Ed. 249, 68 S. Ct. 269 (1948).
A less stringent standard is “heightened scrutiny,” which applies to “quasi-suspect” classes, such as gender, and requires the classification to substantially further a legitimate legislative purpose. Farley, 241 Kan. at 669.
*395The least stringent test is the “rational basis” test. Under this test tire State must only show the statutory classification bears some rational relationship to a valid legislative purpose in order to discriminate. KPERS v. Reimer & Koger Assocs., Inc., 261 Kan. 17, 41-42, 927 P.2d 466 (1966). The rational basis test, which was used by the Supreme Court in Lawrence, should also be used here. This gives the greatest amount of deference to the legislature.
The legislative judgment on the immorality of homosexuality is argued extensively in the State’s brief and the legislators’ amicus brief as a justification for the widely differing penalties. The applicable arguments in the State’s brief are clearly titled: “C. The State Legislates, and Its Legislation is Often Based Upon a PreExisting Morality” and “I. It Is Left To The Legislature— And Not This Court—To Legislate Morality.” The applicable argument in the legislators’ brief is also aptly titled: “The Kansas Legislature, And Not The Judiciary, Is Charged With The Obligation To Make Moral Decisions About What Conduct Should Be Criminalized, And Should Not Be Second Guessed Where Neither A Fundamental Right Nor A Suspect Classification Is Involved.”
Of course, morality is often involved in the formation of criminal law. The problem with the State’s argument is the implication that morality judgments by the legislature are the only considerations in cases of this kind and that the legislature is the only branch of government with any input as to what can be considered criminal. This is not the law. Simply because a majority of the legislature thinks something is immoral does not mean it can make it criminal and be free from having that decision reviewed by the courts. As noted earlier, the deference of the courts to legislative judgments does not extend to the rare instances where that branch exceeds the limits of the people’s constitutional protections. Lawrence is only the most recent example of the duty of the courts to protect the constitutional rights of all people and not just those with whose code of morality we fully agree.
The act involved here is criminal. But if the penalty for the act is not the same for all, the difference must be justified on some rational basis. Simple moral disapproval or dislike of a certain group *396does not satisfy the constitutional requirements which courts must apply.
“Our obligation is to define the liberty of all, not to mandate our own moral code.” Casey, 505 U.S. at 850.
“[A] bare . . . desire to harm a politically unpopular group” is not a valid justification that will meet the requirements to show a legitimate state interest. United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 37 L. Ed. 2d 782, 93 S. Ct. 2821 (1973).
Legislative disapproval of homosexuality alone is not enough to justify any measures the legislature might choose to express its disapproval. Under the rational basis test, there must be a showing that the measures adopted have a rational relationship to a legitimate legislative concern.
In its brief the State contends it has no need of “costly experts,” nor has it taken any “heroic steps,” such as presenting any arguments from the law’s legislative history, to support the rationality of the provision involved. Clearly, there was nothing in the way of expert testimony presented supporting the measure, and the legislative history appears to have nothing in support of the provision at issue. What is presented by the State to establish a rational basis for the law, other than the general moral judgment, are three arguments accurately summarized by their headings: “It is Rational for the State to Value Relationships that May Culminate in Marriage over Relationships that cannot culminate in Marriage”; “It is Rational for the State to Value Human Relationships Less Likely to Spread Disease Pathogens”; and “It is Rational for the State to Value Relationships Leading to Pro-creation.”
We must examine the reasons asserted by the State to determine if they provide a rational basis for enacting the discriminatory sentence provision. The State argues that the responses of government to problems of this land may sometimes seem to be “illogical and unscientific.” The State appears to contend that almost any argument presented in support of a legislative enactment must be found to supply a rational basis for the law, even if it appears to be irrational. The State rather overstates the degree of deference that should be and is granted to implied legislative findings. A rational basis must be rational and supported by a reasonable cause and *397effect relationship to qualify. Otherwise, judicial review would be meaningless. We grant deference, not blind acquiescence, to legislative findings.
Two of the reasons given by the State, those of encouraging marriage and human procreation, are very odd justifications for having much greater criminal penalties for a male performing oral sodomy on a male minor than for a female performing the same act on the same minor. As a matter of legislative policy in Kansas, marriage and procreation between adults and minors are discouraged. Although skillfully defended at oral argument by the State, it is incomprehensible that this law has anything to do with encouraging marriage and procreation between the victim and the assailant, or anyone else, as is apparently claimed by the State and approved by the majority. At least, no connection has been shown.
There is a facial connection between penalizing consensual criminal sexual relations with a minor and concerns about venereal diseases. However, there is no reasonable support presented for much greater criminal punishments for any homosexual acts than for any heterosexual acts.
One must first note the obvious fact that there is no difference in the penalties imposed under the Kansas law based on whether the defendant actually does or does not have a venereal disease. This is a very important omission if the law was truly concerned about venereal disease. Perhaps even more unusual is that under the law a female infected with every venereal disease yet identified, and engaging in acts quite likely to infect or actually infecting a male minor, will receive a much lighter sentence. A disease-free male engaging in sex with another male in a manner not likely to spread disease if it was present will receive a much heavier sentence. Perversely, under the law, a male with a venereal disease who infects and impregnates an underage female will also receive a much lighter sentence. We must also recognize the inapplicability of much of this rationale as it applies to female-with-female sex, which usually has an extremely low potential for spreading venereal disease but receives the higher penalty.
The State and the majority attempt to draw a nexus by pointing to the higher incidence of AIDS among homosexuals than the pop*398ulation in general. However, no attempt is made to draw a connection between punishing any particular individual and the likelihood of that person spreading a disease. Group guilt is not a favored concept in American law. What is the rationality of a law that would punish persons 15 times longer because they may belong to a group that has a higher incidence of AIDS, notwithstanding the fact that there is no evidence the defendant had AIDS or any other disease? This is especially puzzling when, as noted above, a person who actually has AIDS and engages in sex with a minor will receive a much lighter sentence if the defendant is of tire opposite sex from the minor.
It is difficult to conclude that any concern over the spread of disease is factually and logically related enough to establish a rational basis for the huge difference in sentences.
The majority, in an attempt to add weight to the State’s position, offers a number of other arguments. It first notes:
“Unlike individuals in Loving and McLaughlin, who had no control over their race, the offense with which Limón was charged was not based on his sexual orientation or his gender, but was based on his conduct of engaging in sodomy with a child, conduct over which Limón had some control. To say otherwise, we would have to believe that an adult with an irresistible urge to engage in sodomy with a child should not be punished for such behavior.”
As noted earlier, the issue in this appeal is not whether the act is criminal; it is. The issue in this appeal is whether two different people, with the same criminal history, performing the same act, can constitutionally receive vastly different sentences based on the sexes of the parties involved. The majority’s attempt to divert attention from the real issue by setting up a straw man argument that has never been made, and has been specifically denied and repudiated by Limón, contributes nothing to a valid analysis of this issue.
• The majority also attempts to tie this case in with society’s attempts to protect children from being involved in pornography or being provided with alcohol or tobacco. Again, tire case is not about the illegality of the acts involved. Society should protect minors from premature sexual activity, which is conceded by Limón. On the other hand, the majority ignores the fact that the very statutes *399it cites concerning pornography and supplying minors with alcohol or tobacco do not provide penalties 15 times longer depending on whether the defendant was the same sex as the minor. In fact, in the majority’s examples, all defendants receive the same penalty regardless of their sex.
Perhaps most unsettling about the majority’s attempt to strengthen the State’s case is its injection of an unsupported argument not found in the record on appeal, in the brief of the State, or in the amicus brief of the 25 legislators. The majority states:
“In enacting K.S.A. 2002 Supp. 21-3522, the legislature could have determined that to prevent the gradual deterioration of the sexual morality approved by a majority of Kansans, it would encourage and preserve the traditional sexual mores of society. Moreover, traditional sexual mores have played a significant role in the sexual development of children. During early adolescence, children are in the process of trying to figure out who they are. A part of that process is learning and developing their sexual identity. As a result, the legislature could well have concluded that homosexual sodomy between children and young adults deviates from the traditional sexual mores of society and the historical sexual development of children.”
What is the basis for this statement ?
More confusing is the majority’s argument concerning parental responsibility and unwanted pregnancies. The majority asserts:
“When a child is bom from a relationship between a minor and a young adult, the minor is often unable to financially support the newborn child. In many cases, the minor is still a dependent. As a result, the financial burden to support the newborn child properly falls to the young adult. Obviously, the young adult cannot furnish adequate financial support for the newborn child while he or she is incarcerated. The legislature could well have concluded that incarcerating the young adult parent for a long period would be counterproductive to the requirement that a parent has a duty to provide support to his or her minor child. [Citation omitted.]
“On the other hand, same-sex relationships do not generally lead to unwanted pregnancies. As a result, the need to release the same-sex offender from incarceration is absent. Equal protection is satisfied because K.S.A. 2002 Supp. 21-3522 is rationally related to the State’s legitimate interest in getting a young adult parent involved in providing financial support for the newborn child.”
The law and its legislative history make no reference to any of this analysis. The legislative testimony about the heterosexual applications of the Romeo and Juliet law made no mention of the *400desirability of getting the assailant involved in supporting any child who might be conceived. And what has any of this to do, under the facts of this case, with punishing unlawful oral sex, which not only “generally” but never causes pregnancies?
The reason none of these arguments seem to fit is that they do not. The purpose of the law is not to accomplish any of the stated aims other than to punish homosexuals more severely than heterosexuals for doing the same admittedly criminal acts. As we stated in the first appeal on this matter, even as we affirmed the lower court, the argument that this statute is not aimed at homosexuals cannot be made with a straight face.
If there is a rational relationship between the stated concerns and the difference in penalties, it has not been demonstrated in the record on appeal or in the briefs of the appellee and the amicus curiae. The portion of K.S.A. 2002 Supp. 21-3522, the Romeo and Juliet law, which effectively mandates a substantially higher sentence for the same acts, based on whether the defendant is of the same sex as the victim, is a violation of the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution referenced in the Lawrence decision.
Assuming the unconstitutional language is stricken, the highest Kansas crime for which Limón can be convicted for the acts which occurred is under K.S.A. 2002 Supp. 21-3522. We should reverse and remand to the trial court for resentencing for a conviction under K.S.A. 2002 Supp. 21-3522. Striking the entire statute, as suggested by the majority, would not correct the injustice to Limón created by the unconstitutional discrimination. It would also thwart the legislative intent of providing the relief contemplated by the legislature to heterosexual situations, which no one challenges as being inappropriate.
Carved in stone above the pillars in front of the United States Supreme Court building are the words “Equal Justice Under Law.” In bronze letters on the north interior wall of the Kansas Judicial Center we read “Within These Walls The Balance Of Justice Weighs Equal.” There are reasons why we remind ourselves so graphically of the importance of equal justice. Persons in power and authority have historically been tempted to discriminate *401against people they do not like or understand. If these personal and political dislikes become law and exceed the bounds of constitutionality, the courts have been given the duty to be the final protectors of our ideal of equality under the law. This blatantly discriminatory sentencing provision does not live up to American standards of equal justice.