Gay Today: Viewpoint

Nightmare in Gage Park

Talking About Sex Got Him Arrested

Max Movsovitz's
Road to Same Sex Justice for Kansans

By Deb Taylor

On April 28, 1995, Max Movsovitz, an artist from Topeka, Kansas, was asked by an undercover cop if he would have private, consensual oral sex with someone. Movsovitz answered "Yes." The response he received was "You're under arrest." For three years, Movsovitz was in the Kansas courts fighting for the equality of all Kansans . . .

"It's hard to accept that I am a criminal in Kansas. I HAVE A CRIMINAL RECORD! I just never could have imagined it. It's really hard to live with.."

Topeka, Kansas - Ask Max Movsovitz what he thinks of law enforcement and the Kansas court system and the answer he gives you today will greatly differ from his response prior to April 28, 1995. That day, Movsovitz was arrested in Gage Park in Topeka for admitting his willingness to leave the park to have sex with an undercover Topeka police officer at his home.

Now, after three years of heavy litigation and sometimes painful introspection, Movsovitz's work has come to an end. In a move that surprised no one, the Kansas Court of Appeals upheld the constitutionality of an anti-same-sex Topeka solicitation ordinance as well as its underlying authority, the Kansas sodomy law.

Max Movsovitz speaking at Kansas State University about his run-in with law enforcement at Cafe Park in Topeka, Kansas

Currently, Kansas remains with Missouri, Arkansas, Maryland, Oklahoma and Texas as the handful of states where heterosexual sodomy is legal but same-sex sodomy is illegal.

Movsovitz was cited with "Solicitation of Sodomy" under Topeka's City Code 54-133 which states that "It shall be unlawful upon the streets or in other public places within the corporate limits of the city for any person to solicit or agree with any other person to participate in an act of prostitution or sodomy." In Kansas, sodomy is defined as "oral or anal copulation between persons who are not husband and wife or consenting adult members of the opposite sex . . ." Simplified, Kansas law says heterosexuals can freely have oral and anal sex as long as no money is exchanged. For homosexuals, oral and anal sex is illegal. Also, homosexuals can be arrested for merely talking about having sex. As one Topeka reporter stated years ago, "talking dirty in Gage Park can get you arrested."

Movsovitz challenged the constitutionality of the ordinance and the sodomy law, arguing that both violated his federal and state rights to privacy, as well as equal treatment under the law and his freedom of expression. On April 24, 1998, the Court of Appeals panel rejected all of these arguments, concluding that Kansas can have anti-same-sex laws in order to protect public morality. ACLU attorney Matt Coles, who represented Movsovitz, noted the discrimination: "The court says that the law is constitutional because it is based on 'morality.' But Kansas does not morally disapprove of sodomy in private since it allows anyone in Kansas who is heterosexual to do it. Kansas only has a morality problem with sodomy when gay people do it; and that is exactly the kind of 'okay for me, not for you' discrimination that the constitution is supposed to prevent."

On July 14, 1998, the Kansas Supreme Court handed Movsovitz its final blow when it announced it would not hear Movsovitz's appeal. For Movsovitz, the news was "devastating. It was so disillusioning. I guess I should've been ready for the disappointment -- everyone had warned me how cowardly, how unprincipled some judges were in Kansas. I just didn't want to believe it. I just couldn't believe that they wouldn't live up to what judges are supposed to do, and that's to be unbiased, to be apolitical."

The Sting Like most gay Topekans, Movsovitz knew that many arrests were being made in Gage Park. He merely assumed the men were getting arrested for either actually having sex in the park or for soliciting sex. Since he was not interested in either activity, Movsovitz felt fairly safe and had no hesitation about stopping by Gage Park to enjoy the spring weather and look over some work-related drawings he had recently photocopied.

When the first plainclothes officer -- posing as a shy college student -- drove up to Movsovitz in a burgundy-colored, four-door sedan, Movsovitz was polite and even answered the "student's" questions about gay life in Topeka. Movsovitz even encouraged him to be careful in Gage Park, explaining that it was not okay to have sex in the park. The plainclothes officer left.

Enter Officer Tom Pfortmiller, who played eye games with Movsovitz for a few minutes and lit a cigarette before driving up next to him. Pfortmiller -- posing as a gay man looking for fun -- wasted no time asking Movsovitz if he was meeting someone in the park. Only seconds into the conversation, Pfortmiller told Movsovitz he was looking for a friend. "Are you into that?" he asked Movsovitz.

Still a few seconds later, after asking Movsovitz a few questions of a sexual nature, Pfortmiller pointedly asked him "What would you like to do to me?"

After some initial hesitation, Movsovitz admitted that he was "into oral sex."

Pfortmiller asked, "Would you do that to me?"

Movsovitz: "Yeah, sure."

Before Movsovitz had a chance to invite Pfortmiller back to his house, the officer immediately announced, "I'm with the police department . . ."

As Movsovitz puts it, in one afternoon, he had gone from "an honest, hard-working, law-abiding, responsible, tax-paying citizen to a charged criminal, with my name soon to appear in the local newspaper." Struck with the absolute absurdity of being arrested because an undercover cop solicited him, Movsovitz decided to challenge the Topeka ordinance.

The Verdict On the morning following his arrest, because it was a weekend, Movsovitz signed up with an internet service provider so that he could immediately begin his search for legal help. Additionally, in the next several days he made 40 to 50 calls all over the U.S.

He explained that he wasn't trying to fight the facts: "Yes, I said oral sex." Movsovitz was hoping to challenge the validity of a law that could make gays criminals for publicly consenting to have sex in the privacy of their own homes.

With only two days left to decide whether to pay the $500 fine or secure a date in municipal court, Movsovitz was eventually directed to Topeka attorney John Ambrosio, who agreed to take the case pro bono.

In December of '95, Movsovitz was convicted of violating Topeka's ordinance against solicitation of sodomy following his trial in municipal court. He was ordered to pay $499 and stay out of Gage Park for two years, a sentence similar to that of the nearly 60 other men who were arrested in the year-long sting operation.

The following year, he appealed his case to the Shawnee County District Court; it upheld the lower court's ruling. Later, the Kansas Court of Appeals also upheld the ruling, concluding that: "there is no fundamental right to privacy under either the Kansas or United States Constitution which extends to private consensual homosexual sodomy; [the Topeka ordinance and the Kansas Sodomy law] are directed at certain conduct, not at a class of people; protecting public morality is a rational basis for the [Topeka] ordinance and the [Kansas sodomy] statute under the Equal Protection Clause;" and "the solicitation of sodomy prohibited by the [Topeka ordinance] is not protected speech since the Kansas sodomy statute is not unconstitutional."

Kansas Court of Appeals, including Chief Judge Brazil (front row middle), Judge Green (back row second from right).

The Court of Appeals panel was made up of Chief Judge J. Patrick Brazil, Judge Henry W. Green, and District Judge D. Keith Anderson (sitting by assignment). Their reluctance to absorb the information and make a fair ruling was bad enough in Movsovitz's opinion. But the stereotypical and outdated references they used to form their argument were insulting to all Kansans.

In their ruling, the Court referred to Bowers v Hardwick, where the U.S. Supreme Court rejected a constitutional privacy challenge to the Georgia sodomy law. Most lawyers no longer use Bowers v Hardwick due to the recent Romer v Evans decision, in which the U.S. Supreme Court rejected the effort to deny Colorado's gays and lesbians the protection of anti-discrimination laws. According to Romer, states can no longer justify having laws that protect some groups of people but not others. The Kansas Appeals Court rejected the Romer argument, choosing instead to refer to portions of the dissenting opinion in Romer as support.

Another disturbing aspect of the Appeal is the argument the court used to support its belief that the Topeka ordinance does not discriminate on the basis of sexual orientation. Even though the ordinance is concerned only with same-sex conduct, the court stated, the ordinance "does not criminalize a person's sexual orientation. Rather, it prohibits the conduct of any person seeking to solicit or agree with any other person, in a public place, participation in an act of ... sodomy." In other words, even straight people will be arrested if they have - or if they agree to have - homosexual sex.

Movsovitz is bothered by the fact that the Appeals decision was unsigned (they didn't even have the guts to sign it, he notes), and unpublished. While some agree that since it's unpublished it can't be used as a precedent, others - like Wichita lawyer Scott Curry - suggest that "the court is simply ashamed of their reasoning and too cowardly to publish it." Adds Movsovitz, "I just don't know how they live with themselves."

The judges' behavior reminds Movsovitz of a Martin Luther King quote: "History will have to record that the greatest tragedy of this period of social transition was not the vitriolic words and violent actions of the bad people, but the appalling silence and indifference of the good people."

"In other words," states Movsovitz, "it's one thing for people to be blatantly prejudiced and cruel, but it's another thing when people who are in a position of power and have the chance to make a difference -- to correct a wrong -- choose not to. THAT'S what's really disheartening."

Kansas would continue to pass by chances to make a difference. Three months after the Appeals Court decision, on July 14, 1998, the Kansas Supreme Court decided not to hear Movsovitz's appeal.

The Future

The struggle for queer rights in the U.S. has remained constant in the three long years that have passed since Movsovitz's arrest. In 1996 alone, the U.S. Supreme Court declared Colorado's Amendment 2 unconstitutional, ENDA was defeated and DOMA was passed, and the Hawaii Federal Appeals Court declared that Hawaii's anti-same-sex law marriage was unconstitutional. In 1997, U.S. Catholic Bishops advised parents to support -- not condemn -- their queer children, a federal court of appeals announced that healthcare workers could not refuse to treat HIV/AIDS patients, and Connecticut's Governor signed a historic anti-discrimination law banning anti-gay bias in public schools. More recently, Congress rejected the Hefley Amendment, which would have rolled back all non-discrimination policies covering sexual orientation in the federal government.

Kansas homophobe Fred Phelps (center)

And what about Kansas over the same three years? Lawrence successfully added sexual orientation into its Human Relations Ordinance in May '95, but Governor Graves signed SB515, the "Anti-Gay Marriage in Kansas" bill into law on April 11, 1996. Early this year, a Kansas legislator requested a list of all courses being taught in the Kansas Regent's that discuss homosexuality. In Topeka, Mayor Joan Wagnon was recently rebuffed for being concerned about the possibility that some of her constituents were being discriminated against based on their sexual orientation. At the same time, both a Topeka city official and an NAACP leader developed strong ties with anti-gay leader Fred Phelps. The climate of fear, hatred, and ignorance that continues to strangle Kansas was destined to squelch justice in an already ambivalent court.

After much thought, Movsovitz has decided not to appeal his case to the U.S. Supreme Court. This decision has been difficult to reach, but Movsovitz strongly feels that taking a case like his to the U.S. Supreme Court could be risky. Legal experts agree. They caution that the Supreme Court could easily hand down a negative verdict that could be damaging to same-sex equality, all because the judges latched on to the emotional, "public solicitation" aspect of Movsovitz's case, an aspect that tends to make them very nervous. Legal scholars involved in Movsovitz's case are hoping to someday take a non-solicitation case to the Supreme Court. The prospect of this happening is good, considering the current lawsuits (not arrests) in Arkansas, Puerto Rico, and Maryland.

"So," concludes Movsovitz, "it's pretty much over for me."

But the memories linger, and the utter despair and disappointment Movsovitz feels towards the Kansas court's inability to be fair runs deep. He admits that it's hard not to be bitter, "but this whole process has destroyed my naive optimism about the court system. I thought the courts were a place where injustices were undone. My whole notion of how the justice system works is totally shot." Movsovitz praised the brilliance of his lawyers, but feels great anguish that their hard work "just fell on deaf ears."

In spite of the discouraging court process, support from family and friends -- both gay and straight, old and new -- has kept Movsovitz going through his painful three-year ordeal:

"I always thought it sounded like a cliché when people said this, but I REALLY would not have made it through this if it weren't for all the support I got from the community. All the e-mails, all the comments, all the nice, encouraging things people said to me -- it made all the difference in the world. Whenever a verdict came in, it was always like someone just socked me in the stomach. But as soon as word trickled through the community and people started contacting me to tell me how THEY felt about the verdict, it just made it that much easier to bear."

For Movsovitz, "The people on our side of the issue have been wonderful, just wonderful to me."

Since the U.S. Supreme Court is out of the picture, the most immediate next step for Movsovitz is getting on with his life: "I find the best way to deal with the huge disappointment is to just pour myself into my work." Movsovitz is currently designing websites for clients. He's also preparing for an October exhibit of some of his artwork in Topeka at PT's Caffe Espresso in Fleming Place. Near the end of this year, Movsovitz will showcase his artwork at the new Henry's Cafe in downtown Lawrence.

He also tries to keep his mind off the case/verdict by busying himself with volunteer work, such as designing informational brochures about Topeka's historic buildings and neighborhoods for a local preservation group where he serves on the board of directors.

Movsovitz doesn't see his court defeat as the end of the legal fight in Kansas, nor does he intend to end his involvement in seeing Kansas' anti-same-sex laws changed: "I cannot accept that we are a criminal class of people, and we shouldn't have to live as criminals by our very existence." Instead, Movsovitz plans to help out as much as possible if another challenge to the law occurs: "I'm in this now for the long haul." He hopes that others will join the legal fight.

Inscribed on a lobby wall in the Shawnee County Courthouse is the phrase, "Within these walls the balance of justice weighs equal." Given the embarrassing fact that Kansas lags behind the rest of the country regarding human rights, one has to wonder who's defining "justice," and what type of Phelpsonian-like scales are being used for measurement.

In their unsigned opinion, the Appeals Court panel stated that changing the current Kansas sodomy laws "should be addressed by legislatures and not courts." In response to that statement, Salina Journal Editor George Pyle wisely commented, "if we had waited for legislatures, rather than courts, to address the inequality of laws that once discriminated against blacks, we'd still be drinking from separate water fountains."

Movsovitz agrees, noting Kansas' position in history as the home of Brown v Board of Education. This same state now has a sodomy law that has been referred to as one of the most blatantly discriminatory in the country. "The irony of [this]," muses Movsovitz, "seems to be lost on our [current] legislature and judiciary."

For now, justice for Kansas' same-sex residents seems painfully skewed to the conservative right. But the road to equality, although exhaustingly long, lies within reach. And as more brave Kansans step forward to pick up and run with the torch lit by Movsovitz, perhaps justice -- the unconditional kind -- will balance out after all.