Panel Refuses to Erase Unconstitutional Law
Gazette, February 16, 2001
Box 36300, Billings, MT 59107
By Kathleen McLaughlin, Lee State Bureau
HELENA A defunct state law banning homosexual contact should remain on
the books, even though it was struck down four years ago by the Montana
Supreme Court, the House Judiciary Committee decided Thursday.
The panel voted 17-3 to table House Bill 353, by Rep. Tom Facey,
D-Missoula. The measure would have erased from state code the language that
bans sexual contact between consenting adults of the same gender. Supporters
of the measure say keeping the law on the books is an overt statement of
bigotry; opponents say its necessary to uphold societal norms.
Rep. Paul Clark, D-Trout Creek, who supported the bill to remove the law
from the books, said the committees vote makes a strong statement.
"It was not recognizing homosexuality as a viable lifestyle.
Period," Clark said.
In 1997, a unanimous Supreme Court said the law banning same-sex contact
between consenting adults violated the Montana and U.S. constitutions. The
court said it crossed the boundaries of Montanans rights to privacy and
equal protection under the law. Legal experts have said its quite rare that
the Legislature refuses to remove unconstitutional language from the law
Judiciary Chairman Jim Shockley, R-Victor, persuaded the committee to
change HB353 significantly before the final vote. Shockleys amendments
would have kept language on the books saying that homosexuality was still
"deviant," yet not punishable by law.
The move was intended as a compromise, but it worked to help kill the bill.
Supporters of the original measure voted against the bill as it was amended.
Rep. Brad Newman, D-Butte, made a failed attempt to put the measure back in
its original form and a debate over tolerance and deviate conduct ensued.
Rep. Ken Peterson, R-Billings, said he believed that keeping some measure
of the law on the books might prevent such horrible circumstances as prison
"There still is potentiality, and probably should be potentiality, for
prosecution" under the law, Peterson said.
Rep. Joan Hurdle, D-Billings, said she was "shocked" that
Peterson would equate homosexual relationships with rape in prison.
"Were talking about families here. Were talking about long-term
relationships," Hurdle said. "These are citizens of Montana. These
are our bothers and sisters."
The bill will die on the table after the transmittal deadline next week
unless it is brought forward from the committee by a majority vote in the
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