Montana's Inactive Sodomy Law Remains
PlanetOut.com Network, January 30, 2003
By Ann Rostow
SUMMARY: Montana state Rep. Tom Facey, D-Missoula, has asked his colleagues
to repeal the state sodomy law, even though the law has been officially dead
for six years.
Montana state Rep. Tom Facey, D-Missoula, has asked his colleagues to
repeal the state sodomy law, even though the law has been officially dead for
In 1997, the state Supreme Court ruled that Montana's deviate sexual
conduct law was unconstitutional. Nonetheless, the inactive law has
technically remained on the books, despite the fact that it is unenforceable,
and despite the fact that it has never been applied in its 30-year history.
One would think that a move to repeal the moribund language would be a slam
dunk. But according to the Billings Gazette, some people believe the law
should remain in suspended animation until the state Supreme Court decides to
The decision, in Gryczan v. Montana, said
Julie Millam of the Montana Family Coalition, "will be overturned for its
capriciousness." Pastor Harris Himes of the Big Sky Christian Center told
the Gazette that "homosexuality must remain a crime in this state,"
and that legislators are to be applauded "for standing up for their
According to Jennifer Pizer, senior attorney at the western regional office
of Lambda Legal Defense and Education Fund, laws can often remain on the books
long after being declared unconstitutional. Although the state has no power to
enforce such laws, the continued existence of discriminatory statutes sends a
It was only four years ago that South Carolina voted to repeal its ban on
interracial marriage, and just two years ago that Alabama repealed its own
miscegenation law. Neither law had been applicable since 1967, when the U.S.
Supreme Court struck such prohibitions, but roughly 40 percent of voters in
both states voted to keep the statutes.
In its decisive opinion, the Montana top court wrote: "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
"And," the court continued, "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 of
this most intimate social relationship will not withstand constitutional
Repealing a dead law, said Pizer, can be "an important statement of
respect," both to the Constitution and to the people it once targeted.
"It's always a good thing when the legislature makes a point of
acknowledging equality, as well as the value of diversity in a pluralistic
Rep. Facey's repeal effort "asks legislators to respect the rights of
all Montanans," and asks them to honor the oath they took to uphold the
Constitution of Montana. The House Judiciary Committee held hearings on
Facey's bill on Tuesday, but took no action.
On the national front, the U.S. Supreme Court is scheduled to hear oral
arguments in Lawrence and Garner v.
Texas on March 26. A ruling against the Texas homosexual conduct law
on privacy grounds would mean the end of enforceable sodomy laws in 13 states.
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