Judge Strikes Down State's Gay Sex Law
Billings Gazette, February 18, 1996
Box 36300, Billings, MT 59107
HELENA - District Judge Jeffrey Sherlock has struck down Montana's law
that makes private, consensual homosexual sex among adults a crime, ruling that it
violates the Montana Constitution's right to privacy.
Sherlock issued issued a permanent injunction with his opinion Friday forbidding the
state to enforce the law in that regard. Gay and lesbian groups around the state held news
conferences Saturday to hail the decision.
"The fight is not over until the law that makes lesbians, gay men and bisexuals
criminals is off the books, " said Linda Gryczan of Helena. one of the plaintiffs for
the case. "We need only remember that debacle last March in the Montana State Senate
with the attempt to pass the so-called 'Gay Registration Bill.' The district court has now
ruled 'Not in our state!'"
The senate passed a bill to require homosexuals to register with the state, but
reversed itself in the face of a nationwide outcry.
"Monatan's gays, lesbians, and bisexuals have lived under constant threat of
criminal prosecution and official condemnation," Sandy Hale, executive director of
Montana PRIDE!, said in news release. "This Statute has rendered us second class
citizens for too long."
"As his honor pointed out, we Montanas dearly value our right to privacy,"
said Holly Franz, a Helena attorney for the Plaintiffs. "This right is so important
that we put in our constitution.
The ruling is certain to be appealed to the Montana Supreme Court, but no spokesperson
in the Justice Department could be reached for comment on Saturday.
Privacy was the main argument of a group of gays and lesbians, backed by the
organization PRIDE!, who filed the suit in December 1993, and Sherlock agreed with them.
"Since Plaintiffs' activities do not harm anyone, it is hard to understand why
anyone needs to be concerned with what these people do in private or why anyone would want
to deny then the privacy to conduct their activities in a way that does not affect anyone
else, " he said.
But Sherlock also emphasized the limitations of his decision.
"It should be noted here that this decision does nothing more than to state that
homosexual sex, when conducted in private and between consenting adults, is a very private
matter and this state has no reason to attempt to regulate it," Sherlock wrote.
"Again, that is not to say that such activities are appropriate if they are
nonconsensual, conducted in public, or conducted with minors. There are other types of
laws on the books to punish those types of behaviors."
The state used several arguments against the suit to strike the law down, including the
plaintiffs had not been charged with violating the law, and the law helped fight AIDS.
Sherlock scoffed at both these points.
The very existence of the law and the threat of prosecution does harm to the
plaintiffs, he said.
The law carried a maximum penalty of 10 years in jail and a 50 - thousand - dollar
As for stemming AIDS, Sherlock said, the law was written in 1973 - six years before the
first AIDS case was diagnosed in the United States, and no one has ever been prosecuted
"Most objective observers acknowledge that this statute and others like it only
hurt efforts to fight the spread of AIDS," he wrote.
"The state has been unable to put forth much of an interest in preserving the
statute, let alone a compelling one," Sherlock added.
"Perhaps most conclusive in this regard is the fact that no one has been
prosecuted under this particular statute for homosexual activity that is private,
consensual and between adults. If, as has been suggested, the statute is an attempt to
protect public morality, the statute is not doing very good job since no one has ever
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