Montana's Supreme Court
IN THE SUPREME COURT OF THE STATE OF MONTANA
LINDA M. GRYCZAN, ANNE K. GEHR,
STACEY HAUGLAND, DONALD HOWARD,
DOYLE F. FORISTER, and WILLIAM C.
Plaintiffs and Respondents,
STATE OF MONTANA,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
Joseph P. Mazurek, Attorney General, Clay R. Smith, Solicitor, Helena,
Holly J. Franz, Gough, Shanahan, Johnson & Waterman, Helena, Montana; Rosemary
Daszkiewicz, Cairncross & Hempelmann, Seattle,Washington (Womenşs Law Center)
For Amici Curiae:
Prof. Larry Elison, Prof. Thomas Huff, Deirdre Runnette, University of Montana, School
of Law, Missoula, Montana (Womenşs Law Caucus); Joan Jonkel, Missoula, Montana (Montana
Public Health Association); J. Stuart Bradshaw, Stevensville, Montana (Montana Citizens
for Decency Through Law); Mark S. Connell, Connell & Beers, Missoula, Montana; Suzanne
B. Goldberg, Ruth E. Harlow, New York, New York (Lambda Legal Defense and Education Fund,
et al.); Matthew Coles, New York, New York (American Civil Liberties Union)
Heard:April 11, 1997
Submitted: April 17, 1997
Decided: July 2, 1997 Filed:
Clerk Justice James C. Nelson delivered the Opinion of the Court.
The State of Montana appeals a Judgment of the District Court for the First Judicial
District, Lewis and Clark County, declaring § 45-5-505, MCA, unconstitutional as a
violation of the privacy provision of the Montana Constitution when applied to consensual,
private, same-gender sexual conduct between adults. We affirm.
The State raises the following issues:
1. Whether Respondents have standing to maintain an as-applied challenge to the
constitutionality of Sec. 45-5-505, MCA.
2. Whether § 45-5-505, MCA, infringes on Respondents' right to privacy under Article
II, Section 10 of the Montana Constitution to the extent it prohibits consensual, private,
same-gender sexual conduct between adults.
3. Whether § 45-5-505, MCA, violates Article II, Section 4 of the Montana Constitution
by infringing on Respondents' dignity as human beings, discriminating against them on the
basis of sex, or denying them equal protection of the laws to the extent it prohibits
consensual, private, same-gender sexual conduct between adults.
Having affirmed the trial court as to issues 1 and 2, we decline to address issue 3.
On December 6, 1993, Respondents filed a declaratory judgment action, pursuant to Title
27, chapter 8 of the Montana Code, challenging the constitutionality of that portion of
Montana's deviate-sexual-conduct statute, § 45-5-505, MCA, that criminalizes consensual
sex between adults of the same gender. Respondents contend that § 45-5-505,
MCA, is unconstitutional under Article II, Sections 4 and 10 of the Montana
Constitution and that it violates the due process clause of the Fourteenth Amendment to
the United States Constitution.
Respondents are three men and three women residing in Montana who are homosexuals. They
assert that they have in the past and intend in the future to engage in conduct that
violates § 45-5-505, MCA. This statute provides:
Deviate Sexual Conduct. (1) A person who knowingly engages in deviate sexual relations
or who causes another to engage in deviate sexual relations commits the offense of deviate
(2) A person convicted of the offense of deviate sexual conduct shall be imprisoned in
the state prison for any term not to exceed 10 years or be fined an amount not to exceed
$50,000, or both.
(3) The fact that a person seeks testing or receives treatment for the HIV-related
virus or another sexually transmitted disease may not be used as a basis for a prosecution
under this section and is not admissible in evidence in a prosecution under this section.
The phrase "deviate sexual relations" is defined at § 45-2-101(20), MCA, as
"sexual contact or sexual intercourse between two persons of the same sex or any form
of sexual intercourse with an animal." "Sexual contact" and "sexual
intercourse" are defined as:
"Sexual contact" means any touching of the sexual or other intimate parts of
the person of another for the purpose of arousing or gratifying the sexual desire of
Section 45-2-101(65), MCA.
"Sexual intercourse" means penetration of the vulva, anus, or mouth of one
person by the penis of another person, penetration of the vulva or anus of one person by
any body member of another person, or penetration of the vulva or anus of one person by
any foreign instrument or object manipulated by another person for the purpose of arousing
or gratifying the sexual desire of either party. Any penetration, however slight, is
Section 45-2-101(66), MCA.
Section 45-5-505, MCA, was enacted in 1973 as part of the criminal law revision.
Prior to 1973, Montana law had prohibited "crimes against nature" with
persons or animals. Section 45-5-505, MCA, was amended in 1981 to add a maximum fine of
$50,000 as part of the penalty provision. In 1991, a subsection providing a greater
penalty when the conduct was nonconsensual was deleted and a subsection prohibiting the
use of information regarding the testing of or the treatment for the HIV-related virus as
evidence in a prosecution was added. Efforts to repeal the statute were rejected in 1991,
1993, and 1995.
On January 18, 1994, the State moved to dismiss the declaratory judgment action
contending that Respondents lacked standing to challenge the statute, and that there is no
justiciable controversy. The District Court denied the State's motion on June 28, 1994.
The parties filed cross-motions for summary judgment in September 1995. The District
Court subsequently granted Respondents' motion concluding that a justiciable controversy
existed and that Respondents had standing to challenge the statute because they feared
prosecution and were harmed by the very existence of the statute. The court also concluded
that Sec. 45-5-505, MCA, infringed on Respondents' right to privacy under Article II,
Section 10 of Montana's Constitution and that the State failed to demonstrate a compelling
interest justifying the infringement of that right. The State appeals.
Standard of Review
Our standard of review in appeals from summary judgment rulings is de novo. Motarie
v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead
v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a
district court's grant of summary judgment, we apply the same evaluation as the district
court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272 Mont.
261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:
The movant must demonstrate that no genuine issues of material fact exist. Once
this has been accomplished, the burden then shifts to the non-moving party to prove, by
more than mere denial and speculation, that a genuine issue does exist. Having determined
that genuine issues of fact do not exist, the court must then determine whether the moving
party is entitled to judgment as a matter of law. We review the legal determinations made
by a district court as to whether the court erred.
Bruner, 900 P.2d at 903 (citations omitted).
Whether Respondents have standing to maintain an as-applied challenge to the
constitutionality of § 45-5-505, MCA.
The State maintains that without a concrete factual context, Respondents' challenge
presents a political dispute properly decided in a legislative and not in a judicial
forum. The State contends that to establish a justiciable controversy under Article VII,
Section 4(1) of the Montana Constitution, Respondents are required to show an "injury
in fact" and that no such injury exists here because there is no evidence of a
credible threat of prosecution under the statute since no one has been prosecuted for
engaging in consensual, adult, private, same-gender sexual conduct since the statute was
enacted. The State also contends that Respondents do not have standing to challenge the
constitutionality of § 45-5-505, MCA, because they have never been arrested or prosecuted
for violating the statute. The State maintains that the mere apprehension of prosecution
or the fact that a person may feel denigrated by the law is not sufficient for standing
purposes and where an as-applied challenge is at stake, as in this case, resolution of the
constitutional issue should await an actual instance of the statute being applied.
Respondents brought this action under the Uniform Declaratory Judgments Act (the Act)
found at Title 27, Chapter 8, of the Montana Code. Respondents argue that this Court has
held that a party raising a "bona fide constitutional issue" can seek relief
from the courts through a declaratory judgment action. Stuart v. Dept. of Social &
Rehab. Serv. (1991), 247 Mont. 433, 438-39, 807 P.2d 710, 713 (quoting Mitchell
v. Town of West Yellowstone (1988), 235 Mont. 104, 109-10, 765 P.2d 745, 748).
Furthermore, Respondents point out, the Act itself provides that it is remedial and that
it is to be liberally construed and administered to permit courts "to afford relief
from uncertainty and insecurity with respect to rights, status, and other legal relations
. . . ." Section 27-8-102, MCA.
Respondents argue that, although they have never been arrested or prosecuted under the
statute, they have been injured and continue to be injured by the mere existence of the
statute. They contend that the damage to their self-esteem and dignity and the fear that
they will be prosecuted or will lose their livelihood or custody of their children create
an emotional injury that gives them standing to challenge the statute. For example, two
Respondents are employed or are seeking employment in positions requiring state licenses.
Because they engage in conduct classified as a felony, they fear they could lose their
professional licenses. One Respondent is the mother of a five-year old boy. She fears that
the statute could be used to limit her relationship with her son.
To address this issue we look first to whether the case presents a justiciable
controversy and then to whether Respondents have standing to bring this constitutional
challenge. The test of whether a justiciable controversy exists is: (1) that the parties
have existing and genuine, as distinguished from theoretical, rights or interests; (2) the
controversy must be one upon which the judgment of the court may effectively operate, as
distinguished from a debate or argument invoking a purely political, administrative,
philosophical or academic conclusion; and (3) the controversy must be one the judicial
determination of which will have the effect of a final judgment in law or decree in equity
upon the rights, status or legal relationships of one or more of the real parties in
interest, or lacking these qualities, be of such overriding public moment as to constitute
the legal equivalent of all of them. Lee v. State (1981), 195 Mont. 1, 6, 635
P.2d 1282, 1284-85 (citing Matter of Secret Grand Jury Inquiry (1976), 170 Mont.
354, 357, 553 P.2d 987, 990). This Court concluded in Lee that the plaintiff in that case
fit all three of these criteria because he was directly affected by the operation of the
statute at issue.
So too, Respondents in the instant case are directly affected by § 45-5-505, MCA, and
the controversy at issue fulfills each of these three criteria. First, Respondents have a
genuine interest in the outcome of this case. Second, the controversy is one upon which
the judgment of the court may effectively operate. The District Court issued a permanent
injunction forbidding the State to enforce the statute against Respondents or any other
Montanans who engage in homosexual activity if that activity is consensual, private and
engaged in by adults. Third, the District Court's determination has the effect of a final
judgment in law upon Respondents' rights.
The question of standing is whether the litigant is entitled to have the court decide
the merits of the dispute or of particular issues. Helena Parents v. Lewis & Clark
Cty. (1996), 277 Mont. 367, 371, 922 P.2d 1140, 1142 (citing Warth v. Seldin
(1975), 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343). Furthermore, when
standing is placed at issue in a case, the question is whether the person whose standing
is challenged is a proper party to request an adjudication of a particular issue and not
whether the issue itself is justiciable. Helena Parents, 922 P.2d at 1142 (citing Flast
v. Cohen (1968), 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947).
We have previously stated that the following criteria must be satisfied to establish
(1) The complaining party must clearly allege past, present or threatened injury to a
property or civil right; and (2) the alleged injury must be distinguishable from the
injury to the public generally, but the injury need not be exclusive to the complaining
party. Helena Parents, 922 P.2d at 1142-43 (citing Sanders v. Yellowstone
County (1996), 276 Mont. 116, 119, 915 P.2d 196, 198; Stewart v. Bd. of
Cty. Com'rs of Big Horn Cty. (1977), 175 Mont. 197, 201, 573 P.2d 184, 186).
The State argues that since the statute has never been enforced against consenting
adults, there is no "threatened injury" to Respondents. The State relies on Doe
v. Duling (4th Cir. 1986), 782 F.2d 1202, for its contention that prosecution under a
criminal statute must be imminent before standing to challenge the statute is established.
Duling involved a challenge by two unmarried adults to Virginia statutes
prohibiting fornication and cohabitation by unmarried persons. Both plaintiffs alleged
they had engaged in sexual intercourse with unmarried members of the opposite sex and one
plaintiff alleged she had cohabited with an unmarried man. Neither plaintiff had been
prosecuted or threatened with prosecution under the statutes, but they alleged that they
were fearful of prosecution and that that fear had caused them to refrain from engaging in
the prohibited activities. Duling, 782 F.2d at 1204.
The United States District Court for the Eastern District of Virginia found that
plaintiffs had standing to maintain the action and ruled in their favor on the merits. The
Fourth Circuit Court of Appeals reversed, holding that plaintiffs did not have standing.
The Court of Appeals stated that an individual challenging the validity of a criminal
statute must show a threat of prosecution both real and immediate to present a case or
controversy and that the plaintiffs in Duling faced only the most theoretical
threat of prosecution. Duling, 782 F.2d at 1206.
We conclude that the State's reliance on Duling is misplaced. The challenged statutes
in Duling had not been enforced for more than 100 years and there was no evidence that
they were anything more than historical artifacts. While 100 years of nonenforcement may
make a law so moribund that any fear of prosecution is imaginary, the United States
Supreme Court has held that even 40 years of nonenforcement does not deprive a court of
jurisdiction to determine a law's constitutionality. See, e.g., Epperson v. Arkansas
(1968), 393 U.S. 97, 101-02, 89 S.Ct. 266, 269, 21 L.Ed.2d 228. The challenged statute in
the case before us is only 24 years old and has been amended as recently as 1991. This,
and other prior amendments, make it clear that the Montana Legislature not only
contemplates prosecution, but also considers the possibility realistic enough to require
the addition of a subsection preventing the use of evidence of testing or treatment for
the HIV-related virus or other sexually-transmitted diseases as a basis for prosecution
under the statute. Moreover, the legislature has decided three times in the last seven
years not to repeal the statute.
The State's position that Respondents lack standing because they have not been
prosecuted under the statute is at odds with prior decisions of this Court as well as
prior decisions of the United States Supreme Court. In Lee v. State (1981), 195
Mont. 1, 635 P.2d 1282, we did not require the plaintiff to suffer arrest to challenge a
We held in Lee, that plaintiff had standing to challenge the 55-mph speed limit even
though he had not been arrested for speeding, because otherwise, acts of the legislature
that affect large segments of the public would be insulated from judicial attack. Lee, 635
P.2d at 1285.
The State argues that Lee is distinguishable from the case before us because Lee
involved a facial challenge to a statute, while the case before us involves an as-applied
challenge to a statute. In addition, the State points out that the challenged statute in
Lee had been enforced for some time before it was challenged, while the statute here has
not been enforced against consenting adults. We conclude that Lee is not distinguishable
from the instant case simply because the statute at issue here has not been enforced
against persons such as Respondents. Here, Respondents are precisely the individuals the
statute is designed to impact. Moreover, there is nothing to prevent a county attorney
from enforcing the statute against consenting adults. "It is well established that a
decision as to whether or not to prosecute and what charge to bring against an individual
is entirely within the discretion of the county attorney." Helena Parents,
922 P.2d at 1145 (citing State v. Lemmon (1984), 214 Mont. 121, 126, 692 P.2d
Similarly, the United States Supreme Court has concluded that a plaintiff need not
suffer arrest to challenge a criminal statute. See Epperson, 393 U.S. at 100-102, 89 S.Ct.
at 268-69, 21 L.Ed.2d 228 (high school science teacher challenging the constitutionality
of a 1928 criminal law prohibiting the teaching of evolution found to have standing
without any record of prosecutions under the law because the teacher was directly affected
by the law); Doe v. Bolton (1973), 410 U.S. 179, 93 S.Ct 739, 35 L.Ed.2d 201
(doctors challenging certain provisions of Georgia's abortion laws found to have standing
without arrest because they were the ones against whom the criminal statutes directly
operated); Babbitt v. United Farm Workers (1979), 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d
895 (a union and its members had standing to challenge a statute imposing criminal
penalties for certain types of union publicity despite the state's argument that the
criminal penalties had never been and might never be applied); Virginia v. American
Booksellers Assn. (1988), 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782 (booksellers
had standing to bring a pre-enforcement challenge to a statute making it unlawful to
knowingly display sexually-explicit material in a manner accessible to juveniles because
the law was aimed directly at the booksellers).
The existence of a criminal law aimed specifically at one group of citizens, the
enforcement of which has not been disavowed by the state, creates a fear of prosecution
sufficient to confer standing unless there are other circumstances which make that fear
"imaginary" or "wholly speculative." Babbitt, 442 U.S. at 302, 99
S.Ct. at 2310-11, 60 L.Ed.2d 895. Moreover, when fear of criminal prosecution under an
allegedly unconstitutional statute is not imaginary or wholly speculative a plaintiff need
not "first expose himself to actual arrest or prosecution to be entitled to challenge
[the] statute." [Citation omitted.] . . . [T]he criminal penalty provision applies in
terms to "[a]ny person . . . who violates any provision" of the Act.
Moreover, the State has not disavowed any intention of invoking the criminal penalty
provision against [plaintiffs]. Appellees are thus not without some reason in fearing
prosecution. . . . In our view, the positions of the parties are sufficiently adverse with
respect to the . . . provision .. . to present a case or controversy within the
jurisdiction of the District Court.
Babbitt, 442 U.S. at 302, 99 S.Ct. at 2310-11, 60 L.Ed.2d 895. Additionally,
at least one circuit court has held that nothing short of an express unconditional
statement that the law will not be enforced will bar plaintiffs from challenging a law.
See, e.g., United Food & Com. Workers Intrn. v. IBP, Inc. (8th Cir. 1988),
857 F.2d 422, 427-28. Here, the State has made no such disavowal.
In addition to alleging a past, present or threatened injury, Respondents must
establish that the alleged injury is distinguishable from any injury to the general
public, but the injury need not be exclusive to Respondents. Helena Parents, 922
P.2d at 1142-43. Here, the District Court concluded that Respondents are affected
psychologically by the statute in a more acute fashion than persons who do not engage in
same-gender sexual conduct. Thus, the general public does not suffer any injury under the
statute because the statute does not criminalize sexual conduct between heterosexuals. The
statute only criminalizes sexual conduct between homosexuals.
The psychological injuries suffered by Respondents stem from the repression of their
desires for sexual expression and from deprivation of their personal autonomy. In
addition, there is evidence to show that there is a correlation between homosexual sodomy
laws and homophobic violence. The National Institute for Justice has concluded that gays
are the most frequent victims of hate violence today. Thus, homosexuals in Montana live
not only with the psychological impact of the fear of prosecution under the statute but
the fear that violence may be directed at them because they are seen as criminals.
The State, on the other hand, contends that any psychological harm the statute may
inflict upon Respondents is not enough to establish standing. The State relies on Allen
v. Wright (1984), 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556, for this contention.
In Allen, the parents of several black children attending public school challenged the
failure of the Internal Revenue Service to deny tax-exempt status to private schools
allegedly discriminating on the basis of race. Since these parents had not attempted and
had no desire to attempt to enroll their children in the schools, the United States
Supreme Court held that the parents did not have standing as they had not alleged a
personal injury traceable to the schools' allegedly unlawful conduct. The case before us
on appeal is distinguishable from Allen in that, rather than relying on a general
Respondents have presented evidence of specific psychological effects caused by the
statute. Moreover, unlike the parents who brought suit in Allen, Respondents are those
persons who are personally denied equal treatment.
Because the legislature does not regard the statute as moribund and because enforcement
has not been foresworn by the Attorney General, we agree that Respondents suffer a
legitimate and realistic fear of criminal prosecution along with other psychological
harms. Respondents are precisely the individuals against whom the statute is intended to
operate. This is sufficient to give Respondents standing to challenge the
constitutionality of the statute. Moreover, to deny Respondents standing would effectively
immunize the statute from constitutional review.
Accordingly, we hold that a justiciable controversy exists and that Respondents have
standing to challenge the constitutionality of § 45-5-505, MCA.
Whether § 45-5-505, MCA, infringes on Respondents' right to privacy under Article II,
Section 10 of the Montana Constitution to the extent it prohibits consensual, private,
same-gender sexual conduct between adults.
In its February 16, 1996 Order on Motions for Summary Judgment, the District Court
concluded that § 45-5-505, MCA, violates Respondents' right to privacy guaranteed by the
Montana Constitution and that that invasion of privacy is not justified by any compelling
state interest. The court recognized that since Respondents did not present a facial
attack upon the statute, it could not declare the statute unconstitutional as to any and
all sets of circumstances that might arise. However, the court issued a permanent
injunction forbidding the State to enforce the statute against Respondents or any other
people in the State of Montana who engage in consensual, adult, private, same-gender
sexual conduct. In addressing this issue we determine, first, whether Respondents' sexual
conduct prohibited by § 45-5-505, MCA, is protected by Montana's constitutional right of
privacy and then, if it is protected, whether the State has demonstrated a compelling
interest for infringing that right. We begin our discussion with a brief overview of the
right of privacy under the federal constitution.
The federal constitution does not explicitly grant citizens the right to privacy. That
right has been inferred, however, from other provisions of the constitution and is used
particularly in search and seizure contexts. Justice Louis Brandeis, in his dissenting
opinion in Olmstead v. United States first argued that the Fourth Amendment
protected an individual's right of privacy from invasions by the government.
The makers of our Constitution . . . conferred, as against the Government, the right to
be let alone--the most comprehensive of rights and the right most valued by civilized men.
To protect that right, every unjustifiable intrusion by the Government upon the privacy of
the individual, whatever the means employed, must be deemed a violation of the Fourth
Olmstead v. United States (1928), 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72
L.Ed.2d 944, overruled by Katz v. United States (1967), 389 U.S. 347, 88 S.Ct.
507, 19 L.Ed.2d 576.
In his concurrence to the majority's opinion in Katz, Justice Harlan
summarized the rule that has emerged from Katz and from prior decisions regarding
privacy in the context of a search as requiring, "first that a person have exhibited
an actual (subjective) expectation of privacy and, second, that the expectation be one
that society is prepared to recognize as 'reasonable.'" Katz, 389 U.S. at
361, 88 S.Ct. at 516, 19 L.Ed.2d 576.
This two-prong test was later adopted by the United States Supreme Court in its
decision in Smith v. Maryland (1979), 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d
In addition to a right of privacy underlying the Fourth Amendment, an aspect of privacy
has been tied to an individual's liberty interest. In Griswold v. Connecticut
(1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, the United States Supreme Court held
that laws forbidding the use of contraceptive devices violated the right of marital
privacy which the Court determined is within the penumbra of specific guarantees of the
Bill of Rights. Six of the justices deciding Griswold recognized the right of privacy to
be a fundamental right protected by the federal constitution.
While the right of privacy enunciated in Griswold has been recognized by the United
States Supreme Court to protect certain personal decisions, other personal choices have
been excluded. In Bowers
v. Hardwick (1986), 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140, after being
charged with violating a Georgia statute criminalizing sodomy by committing that act with
another adult male in the privacy of his home, Hardwick brought suit to challenge the
constitutionality of the statute. The United States Supreme Court determined that the
federal constitution does not confer a fundamental right upon homosexuals to engage in
sodomy, thus the statute was held to be constitutional.
However, Justice Blackmun dissenting in Bowers, articulated that Bowers
was not about the right to engage in homosexual sodomy, but rather it was about "the
right to be let alone" as enunciated by Justice Brandeis' dissent in Olmstead.
Bowers, 478 U.S. at 199, 106 S.Ct. at 2848, 92 L.Ed.2d 140.
Regardless of whether Bowers was correctly decided, we have long held that
Montana's Constitution affords citizens broader protection of their right to privacy than
does the federal constitution. See State v. Siegal (Mont. 1997), 934 P.2d 176,
183, 54 St.Rep. 158, 163-64. Unlike the federal constitution, Montana's Constitution
explicitly grants to all Montana citizens the right to individual privacy. Article II,
Section 10 of the Montana Constitution provides:
Right of privacy. The right of individual privacy is essential to the well-being of a
free society and shall not be infringed without the showing of a compelling state
Since the right to privacy is explicit in the Declaration of Rights in Montana's
Constitution, it is a fundamental right and any legislation regulating the exercise of a
fundamental right must be reviewed under a strict-scrutiny analysis. To withstand a
strict-scrutiny analysis, the legislation must be justified by a compelling state interest
and must be narrowly tailored to effectuate only that compelling interest. Siegal, 934
P.2d at 184 (citing State v. Pastos (1994), 269 Mont. 43, 47, 887 P.2d 199, 202).
The District Court held that § 45-5-505, MCA, violated Respondents' right to privacy
under the Montana Constitution. Relying on the two-prong test set forth in Katz and
adopted by this Court in Hastetter v. Behan (1982), 196 Mont 280, 639 P.2d 510,
the District Court concluded that Respondents' same-gender sexual activities are covered
by Montana's right to privacy. The court found that Respondents have an expectation of
privacy in the activities proscribed by the statute since "a person's decision as to
sexual matters is probably one of the most private areas of a person's life."
Furthermore, the court determined that while many Montanans do not approve of homosexual
activity, that is not to say that society is unwilling to recognize as reasonable an
expectation of privacy as to consensual, adult, private, same-gender sexual conduct.
Because the State failed to demonstrate a compelling interest justifying the infringement
of Respondents' right to privacy, the court granted summary judgment to Respondents.
The State, while acknowledging the existence of an individual's right to privacy under
Article II, Section 10, contends that it does not immunize adult same-gender sexual
conduct from state regulation. The State maintains that the United States Supreme Court
already resolved this issue in Bowers and that no right to privacy for this
The State also contends that the appropriate test for determining whether a fundamental
right to privacy exists is not the two-part test set out in Katz regarding
informational privacy, but rather, a test regarding personal-autonomy privacy used by the
United States Supreme Court in Bowers and derived from Palko v. Connecticut
(1937), 302 U.S. 319,
58 S.Ct. 149, 82 L.Ed.2d 288, overruled on other grounds by Benton v. Maryland
(1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. This test may be articulated as
whether the statute in question "violate[s] those 'fundamental principles of liberty
and justice which lie at the base of all our civil and political institutions.'"
Palko, 302 U.S. at 328, 58 S.Ct. at 153, 82 L.Ed.2d 288.
We agree with the District Court that under traditional Katz analysis,
Respondents' same-gender, consensual sexual conduct is protected by Montana's
constitutional right of privacy. It cannot seriously be argued that Respondents do not
have a subjective or actual expectation of privacy in their sexual activities. With few
exceptions not at issue here, all adults regardless of gender, fully and properly expect
that their consensual sexual activities will not be subject to the prying eyes of others
or to governmental snooping or regulation. Quite simply, consenting adults expect that
neither the state nor their neighbors will be co-habitants of their bedrooms. Moreover,
while society may not approve of the sexual practices of homosexuals, or, for that matter,
sodomy, oral intercourse or other sexual conduct between husband and wife or between other
heterosexuals, that is not to say that society is unwilling to recognize that all adults,
regardless of gender or marital state, at least have a reasonable expectation that their
sexual activities will remain personal and private. Accordingly, we disagree with the
State that the Katz test is inappropriate. It is, and under that test
Respondents' right to privacy in their consensual, non-commercial sexual conduct is
protected under Article II, Section 10 of Montana's Constitution.
As to Palko, this Court applied a Palko-derived test in Town of Ennis v.
Stewart (1991), 247 Mont. 355, 807 P.2d 179, along with the Katz test. In
Ennis, several property owners refused to hook up to the city water system arguing that
they had a privacy right to use the wells in their homes. We stated that under the federal
constitution, the right to privacy has been extended only to those rights which are
fundamental or implicit in the concept of ordered liberty. Ennis, 807 P.2d at
182. We held in Ennis that the type of interest being infringed was not the kind
sufficient for defendants to invoke the special protections of their privacy right. We
stated that because the right being asserted was not of constitutional magnitude the Town
need not show a compelling interest to satisfy its ends, rather it need only demonstrate
that the ordinance bears a rational relationship to the achievement of a legitimate state
interest. Ennis, 807 P.2d at 182.
While hooking up to a private well may not be the type of interest sufficient to invoke
the special protections of a privacy right, adults engaging in consensual, non-commercial
sexual activities in private is sufficient. More importantly, however, regardless of
whether same-gender, consensual sexual conduct is accorded federal constitutional,
personal-autonomy privacy protection as a fundamental right or as a right implicit in the
concept of ordered liberty, Montana's Constitution, as we have already pointed out,
explicitly protects individual or personal-autonomy privacy as a fundamental right by its
placement in the Declaration of Rights. In fact, it is hard to imagine any activity that
adults would consider more fundamental, more private and, thus, more deserving of
protection from governmental interference than non-commercial, consensual adult sexual
Accordingly, whether we apply the Katz test or the Palko test, we conclude that
Respondents' right of privacy under Article II, Section 10 of Montana's Constitution
includes the right to engage in consensual, non-commercial, private, same-gender sexual
conduct with other adults free of governmental interference or regulation.
Finally, the State points out that the delegates to the 1972 Montana Constitutional
Convention defeated a proposal to include a provision in the Declaration of Rights stating
that "[p]rivate sexual acts between consenting adults do not constitute a
crime." The State contends that this reflects an unwillingness to protect this type
of conduct, even under the privacy clause. We do not agree. The verbatim transcript of the
1972 Constitutional Convention is bereft of any discussion as to why the proposal was
While the State can speculate that this reflects an unwillingness to protect this type
of conduct, one can also speculate that the delegates believed it was already protected
under the privacy clause.
In summary, and regardless of the sort of legal test used, we agree with the statement
of the Tennessee Court of Appeals when faced with a similar question of the extent of an
individual's right to privacy under the Tennessee Constitution:
We think it is consistent with this State's Constitution and constitutional
jurisprudence to hold that an adult's right to engage in consensual and noncommercial
sexual activities in the privacy of that adult's home is a matter of intimate personal
concern which is at the heart of Tennessee's protection of the right to privacy, and that
this right should not be diminished or afforded less constitutional protection when the
adults engaging in that private activity are of the same gender. Campbell v.
Sundquist (Tenn. Ct. App. 1996), 926 S.W.2d 250, 262. We hold that Respondents'
sexual conduct which is prohibited by § 45-5-505, MCA, is protected by Article II,
Section 10 of Montana's Constitution.
It follows then that since we have concluded that § 45-5-505, MCA, constitutes a
governmental intrusion into Respondents' right to privacy, we must next determine whether
the State has a compelling interest warranting this intrusion. The State contends that
this compelling interest includes protecting public health by preventing the spread of the
HIV-related virus and by protecting public morals.
The State's assertion that the statute protects public health by containing the spread
of AIDS relies on faulty logic and invalid assumptions about the disease. To begin with,
§ 45-5-505, MCA, was enacted in 1973, almost ten years before the first AIDS case was
detected in Montana. Despite the two-plus decades that the statute has been in effect, HIV
infection is currently a significant cause of illness and death in this State, and AIDS is
now the sixth leading cause of death among middle-aged Montanans.
Moreover, the State's rationale assumes that all same-gender sexual conduct contributes
to the spread of the disease. This is grossly inaccurate. AIDS and HIV, the virus that
causes AIDS, are transmitted through the exchange of HIV-infected semen or blood, as can
occur during vaginal, anal and oral intercourse, or the sharing of contaminated needles.
Sexual contact between women has an extremely low risk of HIV transmission. On the other
hand, heterosexual contact is now the leading mode of HIV transmission in this country.
The Montana Public Health Association (MPHA) reports that [a]ccording to the most recent
Centers for Disease Control (CDC) data released at the XI International Conference on AIDS
in July, 1996, the incidence of AIDS (newly reported cases) is growing most rapidly among
heterosexuals. In fact, the proportion of yearly reported AIDS cases resulting from
heterosexual sex has increased steadily over time, multiplying by more than 5 times
between 1985 and 1995. In this same time period, the risk group designated "men who
have sex with men" has accounted for a steadily decreasing proportion of newly
reported AIDS cases, decreasing by more than 20% between 1985 and 1995. In one year,
1993-1994, estimated AIDS incidence among people infected heterosexually leapt up by 17%.
At this alarming rate, heterosexuals lead both "men who have sex with men" and
"intravenous drug users" as the risk group with the fastest growing AIDS
incidence. In 1995, 65% of those infected through heterosexual contact were women.
HIV/AIDS Surveillance Report (1995) Vol. 7, No. 2, U.S. Department of Health and Human
Services; Public Health Service; Centers for Disease Control and Prevention; National
Center for HIV, STD, and TB Prevention.
Section 45-5-505, MCA, targets a wide range of behavior unrelated to the spread of HIV.
For example, the term "sexual contact" in the statute encompasses touching,
caressing and kissing, activities that do not spread HIV. Moreover, if two people are not
infected with HIV, they cannot spread it, yet sexual conduct between the two is prohibited
under the statute. In addition, the statute does not account for "safe" versions
of the activities, i.e., use of a condom during any "sexual contact" which
greatly reduces or eliminates the risk of HIV transmission. Thus, the inclusion of
behavior not associated with the spread of AIDS and HIV and the exclusion of high-risk
behavior among those other than homosexuals indicate the absence of any clear relationship
between the statute and any public health goals.
The State contends that criminal sanctions help deter behavior, thereby reducing the
spread of AIDS. The AIDS Prevention Act passed by the Montana Legislature in 1989 and
found at Title 50, Chapter 16, Part 10 of the Montana Code, acknowledges that control of
the spread of AIDS is dependent upon education of those infected or at risk of infection.
Section 50-16-1002(1), MCA. MPHA, an association of 340 public health professionals
throughout Montana, writing as amicus curiae, asserts that criminal sanctions are
ineffective as a deterrent and are extremely harmful to public education and disease
prevention efforts. MPHA argues that education and counseling are the most effective means
of changing behavior and that criminal statutes seriously undermine public health
strategies by causing individuals to conceal or distort relevant information and by
inhibiting effective public education efforts. Accordingly, we conclude that public health
goals attributed to § 45-5-505, MCA, do not support a compelling interest for the
infringement of Respondents' privacy rights.
The State also argues that it has a compelling interest in protecting public morals and
that § 45-5-505, MCA, advances that interest. The State contends that "societal
notions" of appropriate sexual conduct provide rational grounds for § 45-5-505, MCA,
and that this is simply one of many areas of the law where legislative majorities have
made moral choices contrary to the desire of minorities. In a similar vein, amicus Montana
Citizens for Decency Through Law argues that this statute is deeply rooted in the values
of the citizens of this State and that the legislature's prohibition against homosexual
sex is a proper exercise of the decision-making power of that branch--as opposed to the
judicial branch--on what is an important political, moral and public policy issue. We
We do not deny the legislature's public policy-making power, nor do we dispute that
public policy and the laws implementing it may often reflect majority will and prevailing
notions of morality. Nevertheless, it is axiomatic that under our system of laws, the
parameters of the legislature's policy-making power are defined by the
Constitution and that its ability to regulate morals and to enact laws reflecting moral
choices is not without limits. As the Tennessee Court of Appeals pointed out in Campbell:
With respect to regulation of morals, the police power should properly be exercised to
protect each individual's right to be free from interference in defining and pursuing his
own morality but not to enforce a majority morality on persons whose conduct does not harm
others. . . .
Indeed, what is considered to be "moral" changes with the times and is
dependent upon societal background. Spiritual leadership, not the government, has the
responsibility for striving to improve the morality of individuals. Campbell, 926
S.W.2d at 265-66 (quoting Commonwealth v. Bonadio (Pa. 1980), 415 A.2d 47, 50).
We agree with the State and with amicus that it is not the function of this or of any
court to interpret the law on the basis of what may be morally acceptable or unacceptable
to society at any given time. It is not the judiciary's prerogative to condone or condemn
a particular lifestyle and the behaviors associated therewith upon the basis of moral
That said, it does not follow, however, that simply because the legislature has enacted
as law what may be a moral choice of the majority, the courts are, thereafter, bound to
simply acquiesce. Our Constitution does not protect morality; it does, however, guarantee
to all persons, whether in the majority or in a minority, those certain basic freedoms and
rights which are set forth in the Declaration of Rights, not the least of which is the
right of individual privacy. Regardless that majoritarian morality may be expressed in the
public-policy pronouncements of the legislature, it remains the obligation of the
courts--and of this Court in particular--to scrupulously support, protect and defend those
rights and liberties guaranteed to all persons under our Constitution. The oath of office
taken by every justice and every judge in this state (not to mention every legislator as
well) demands precisely that. Art. III, Sec. 3, Mont.Const.
As we have already stated, in this State, under Montana's Constitution, the right of
individual privacy--that is, the right of personal autonomy or the right to be let
alone--is fundamental. It is, perhaps, one of the most important rights guaranteed to the
citizens of this State, and its separate textual protection in our Constitution reflects
Montanans' historical abhorrence and distrust of excessive governmental interference in
their personal lives. That such interference is because the majority wills it is no less
James Madison decried the potential for a tyranny of the majority, pointing out that it
was as important in our system of government to guard the minority in our society against
injustice by the majority, as it was to guard society from the oppression of its rulers.
The Federalist, No. 51, at 351 (James Madison) (Jacob E. Cooke ed., 1961).
[o]f all tyrannies a tyranny sincerely exercised for the good of its victims may be the
most oppressive. It may be better to live under robber barons than under omnipotent moral
busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point
be satiated; but those who torment us for our own good will torment us without end for
they do so with the approval of their own conscience. C.S. Lewis, The Humanitarian Theory
of Punishment, in God in the Dock 287, 292 (1970).
The right of consenting adults, regardless of gender, to engage in private,
non-commercial sexual conduct strikes at the very core of Montana's constitutional right
of individual privacy; and, absent an interest more compelling than a legislative distaste
of what is perceived to be offensive and immoral sexual practices on the part of
homosexuals, state regulation, much less criminalization, of this most intimate social
relationship will not withstand constitutional scrutiny. Quite simply, while legislative
enactments may reflect the will of the majority, and, arguably, may even respond to
perceived societal notions of what is acceptable conduct in a moral sense, there are
certain rights so fundamental that they will not be denied to a minority no matter how
despised by society. In Montana, the right of privacy is such a right. While nothing in
this opinion should be construed to countenance nonconsensual sexual activity, sexual
contact with a minor, or any form of sexual conduct for commercial purposes, Montana's
constitutional right of privacy--this right of personal autonomy and right to be let
alone--includes the right of consenting adults, regardless of gender, to engage in
non-commercial, private, sexual relations free of governmental interference, intrusion and
Having concluded that § 45-5-505, MCA, constitutes a governmental intrusion into
Respondents' right to privacy, guaranteed by Article II, Section 10 of Montana's
Constitution, and finding no compelling state interest for such an intrusion, we hold that
§ 45-5-505, MCA, is unconstitutional as applied to Respondents and other consenting
adults engaging in private, same-gender, non-commercial, sexual conduct, and we affirm the
decision of the District Court.
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ KARLA M. GRAY
Chief Justice J. A. Turnage concurring and dissenting:
I agree with the result of this case declaring § 45-5-505, MCA, unconstitutional.
However, I dissent to the majority's ruling basing unconstitutionality on Article II,
Section 10 of the Montana Constitution.
The majority has unnecessarily and unwisely used privacy as the basis for its decision.
Two provisions of the Montana Code are the focus of the issue in this case.
Section 45-2-101(20), MCA, provides this definition:
"Deviate sexual relations" means sexual contact or sexual intercourse between
two persons of the same sex[.] [Emphasis added.]
Section 45-5-505, MCA, provides:
Deviate sexual conduct. (1) A person who knowingly engages in deviate sexual relations
or who causes another to engage in deviate sexual relations commits the offense of deviate
(2) A person convicted of the offense of deviate sexual conduct shall be imprisoned in
the state prison for any term not to exceed 10 years or be fined in an amount not to
exceed $50,000, or both.
The statutory scheme of the legislature clearly criminalizes sexual acts between
persons of the same sex and decriminalizes the same sexual conduct engaged in by persons
of opposite sexes. Clearly, this is a denial of the constitutional guarantee of equal
protection of the law in violation of the Fourteenth Amendment to the United States
Constitution and Article II, Section 4 of the Montana Constitution.
To be treated equally under the law is a far broader constitutional right, together
with the right of due process, than any other constitutional guarantee in either the
federal or state constitution.
I agree with the majority that § 45-5-505, MCA, is unconstitutional as applied to
noncommercial homosexual activity engaged in by adults consensually and in private.
However, unlike the majority, I would base that determination on violation of
constitutional guarantees of equal protection under the Fourteenth Amendment to the United
States Constitution and Article II, Section 4 of the Montana Constitution.
The Equal Protection Clause prohibits any classification scheme which fails a rational
basis analysis. Under rational basis analysis, the Court's inquiry must be whether there
exists a legitimate government objective which bears some identifiable rational
relationship to the classification made. See Burlington Northern R. Co. v. Ford
(1992), 504 U.S. 648, 651, 112 S.Ct. 2184, 2186, 119 L.Ed.2d 432, 438; Cottrill v.
Cottrill Sodding Service (1987), 229 Mont. 40, 43, 744 P.2d 895, 897.
As is discussed at some length in the majority opinion, § 45-5-505, MCA, bears no
rational relationship to either of its suggested government purposes, as an expression of
societal mores or to protect public health. As an expression of societal mores, the
statute is both overbroad and underinclusive, forbidding consensual intimate touching
between homosexuals without any evidence that such conduct was historically forbidden, yet
permitting heterosexuals to engage in conduct long deemed inappropriate by some segments
of society, such as anal sex, sex outside of marriage, and non-procreative sex.
Furthermore, the State has not demonstrated, nor can it demonstrate, that the purpose
of § 45-5-505, MCA, was or is to protect public health. Not one of the three public
health experts who testified in this case suggested that § 45-5-505, MCA, offered any
benefit to the public health.
v. Wasson (Kentucky 1992), 842 S.W.2d 487, the Supreme Court of Kentucky struck
down a statute similar to § 45-5-505, MCA, which defined as a misdemeanor criminal
offense "deviate sexual intercourse with another person of the same sex." In
doing so, the court reasoned:
In the final analysis we can attribute no legislative purpose to this statute except to
single out homosexuals for different treatment for indulging their sexual preference by
engaging in the same activity heterosexuals are now at liberty to perform. By 1974 [when
the Kentucky statute was enacted] there had already been a sea change in societal values
insofar as attaching criminal penalties to extramarital sex. The question is whether a
society that no longer criminalizes adultery, fornication, or deviate sexual intercourse
between heterosexuals, has a rational basis to single out homosexual acts for different
treatment. Is there a rational basis for declaring this one type of sexual immorality so
destructive of family values as to merit criminal punishment whereas other acts of sexual
immorality which were likewise forbidden by the same religious and traditional heritage of
Western civilization are now decriminalized? If there is a rational basis for different
treatment it has yet to be demonstrated in this case. We need not sympathize, agree with,
or even understand the sexual preference of homosexuals in order to recognize their right
to equal treatment before the bar of criminal justice. Wasson, 842 S.W.2d at 501.
No rational basis has been demonstrated for the classification created under §
45-5-505, MCA. I conclude that the statute is violative of the Equal Protection Clauses of
the Montana and the United States Constitutions as applied to persons of the same sex
engaging in noncommercial, consensual, private sexual conduct, and is therefore
unconstitutional. I therefore dissent and specially concur that § 45-5-505, MCA, is
unconstitutional as a denial of equal protection.
So much for the unnecessary reliance by the majority on Article II, Section 10 of the
Montana Constitution and now as to the basis for the majority opinion being unwise.
The opinion of the majority, I submit, is an open-door invitation to challenges of
legislative enactments by the people of Montana, through their constitutionally- empowered
legislature, prohibiting conduct that they believe to be destructive to Montana's society
as a whole. There are many such statutes on the books that not only have a rational basis
but are very important to the people of Montana.
I submit that this Court should not be surprised if one of the first challenges under
the theory espoused by the majority in this case will be to § 45-5-105, MCA, which
provides severe criminal sanctions for a person who purposely aids or solicits another to
commit suicide. The majority opinion cites with approval the District Court's statement
that "a person's decision as to sexual matters is probably one of the most private
areas of a person's life." This statement is correct. However, there is something in
the lives of people equally private and more important--the right to life or death.
I respectfully concur as to the result and dissent as to the reasoning used by the
/S/ J. A. TURNAG