Why Montana Won’t Yank The State’s ‘No Gay Sex’ Law Off Its Books
Rather than update its state law books to reflect the Supreme Court’s 2003 Lawrence v Texas decision or the Montana Supreme Court’s own 1997 decision in Gryczan v. State of Montana to strike down Montana’s sodomy laws (which carried a $50,000 fine and up to 10 years in prison), lawmakers in the state House instead blocked a bill that would’ve removed the language from state law. The Senate already passed its version of the bill. Why such opposition? Because according to House Judiciary Chairman Rep. Ken Peterson, a Republican attorney, the Supreme Court didn’t find the law unconstitutional, just that what adults do in their own bedrooms is protected by their right to privacy. The law, says Peterson, “should not be repealed because of situations it might apply in.”
“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Lawrence v. Texas, 539 U.S. 558 (2003)
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@Jared: It’s not meaningless in our case. This is not like a “can’t ride a horse on Sunday” law. By staying on the books our most difficult opponents will argue it’s the law, and they’ll use the logic proffered — “it’s useful in some situations” and they’ll use it to stop DOMA repeal, and mini-DOMA repeals. They’ll use it in every amicus brief they file against us. Judges will refer to it, as the “intent of the legislature” even if blocked by the US Supreme Court. And it’ll be used against us in numerous other ways, and the most ignorant among the ignorant will use the law to stop anything for us anywhere. No, this law must go. It’s not garden variety. But a useful tool by morons to beat us with. Which is why it’s being kept — to stomp on gay folks. Even the figurative existence of the law will be used to stomp us. No, it must go.
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@Pete ORD: The repeal bill passed the state Senate, and the governor is a centrist Democrat who would have signed it. It got tripped up by a cadre of radical repubs in the state House.
Please don’t rip on my home state. They can be and are progressive in a lot of different ways, and the bigger cities, like anywhere, are passing ordinances protecting gays and lesbians. At least they’re not Indiana.
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This is also my question why it’s happening?