I don't agree with every case the ACLU pursues--for example I thought their quest to remove a small cross hiding in the Los Angeles County seal was foolish--and I certainly don't agree with every legal argument they make. But I was shocked to read at Dust in the Light that the ACLU was apparently arguing that there was a constitutional right to molest children. That didn't seem very likely to me so I decided to check it out. The argument, it is claimed, appeared as a footnote in the case of Kansas v. Limon which involved one resident of a school for developmentally disabled youth, who had just turned eighteen the week before, performing oral sex on another resident who was only fourteen. The ACLU got involved because if Limon had been female she would have had a maximum presumptive sentence of 15 months in prison, but being male was sentenced to over 17 years in prison and must subsequently register as a sex offender. That is because of a so called "Romeo and Juliet Law" in Kansas which makes sex between teenagers a lesser offense, but it applies only when the teenagers are of the opposite sex. I read the ACLU's brief and it focused entirely on equal protection arguments. Limon was treated drastically differently because he was gay and he was treated drastically differently because of his gender.
So where did people get the idea that the ACLU was trying to strike down child molestation laws? Well the post at Dust in the Light referred to a post by Clayton Cramer who had claimed the ACLU had also made a due process argument in their case. He was referring to footnote four in which the ACLU said, by way of offering an alternate theory,
In addition, the exclusion in the Romeo & Juliet law must satisfy heightened scrutiny because it provides gay teenagers with differential access to a fundamental right.
Note that this is still an equal protection argument. Under federal law there is generally two ways in which an equal protection claim can force a heavy burden on the state to justify its unequal treatment of individuals. One way is if the differential treatment was based on some suspect classification like race, or in this case, gender. That is the main argument being made here. The other way, though, is if the subject matter of the unequal treatment concerns a fundamental right. For example in Bush v. Gore the Supreme Court was concerned about differential methods of reading ballots which implicated one's fundamental right to vote. The ACLU is arguing that if their main arguments as to why the state has a heavy burden to justify this exclusion fails, as a fall back they claim the burden still exists because the case involves matters of sexual intimacy. They do note that a teenager's rights are more limited and there is greater justification for those rights to be restricted. And they don't argue that it should not be restricted here either, but they do feel it should be restricted on all teenagers equally. In fact, voting rights are a great analogy here. States may certainly restrict the ability to vote to people over the age of eighteen. Should a state allow sixteen year olds to vote, though, it would seemingly be quite problematic were they to only give voting rights to sixteen year old students who take AP History classes.
If there was any doubt about what the ACLU was arguing here, it should be laid to rest by their reply brief (internal citations omitted):
The Kansas legislature has already decided that consensual sexual activity between teenagers who are close in age should not be punished as severely as sexual abuse of a teenager by a much older adult. Requiring the State to treat gay teenagers equally will not prevent the State from prosecuting and convicting adults who sexually abuse young children, nor will it prevent the State from prosecuting and convicting older teenagers who engage in consensual sexual activity with a 14 or 15 year old. Contrary to the State’s assertions, Matthew [Limon] is neither seeking to invalidate age of consent statutes nor asserting a “privacy interest in committing sexual offenses against children.” Matthew is not asking this Court to overturn the Romeo & Juliet law; to the contrary, he wants to be charged and prosecuted under it.
Moreover, the State does not explain how Matthew’s argument undermines the statutory framework for protecting children. The existing statutory framework protects young children under a set of laws that are not implicated here. And it protects teenagers by making it a serious crime for a much older adult to sexually abuse a 14 or 15 year old and by imposing smaller penalties – while still making it a crime – for an older teenager to engage in consensual sexual activity with a 14 or 15 year old. Thus, younger teenagers
are protected from older teenagers and older teenagers are protected from excessive prison terms. Matthew’s is simply asking that the State be required to treat gay teenagers and heterosexual teenagers equally when it punishes them for consensual sexual activity with other teenagers.
The above paragraph ends with the following footnote:
The State attempts to distinguish Lawrence because it did “not involve minors." But equal protection principles do not change simply because a case involves a minor. The equal protection principles discussed in Lawrence apply here with equal force. In contrast, because this case involves a minor, Matthew has not asserted a due process claim, and concedes that the State’s interest in protecting younger teenagers justifies subjecting older teenagers to the criminal sanctions imposed by the Romeo & Juliet law.
Thus we see that, no, the ACLU is not trying to strike down child molestation laws, nor any laws, in fact. They are merely tring to get a current law to apply equally without regards to gender.