Last edited: December 31, 2004

Panel Refuses to Erase Unconstitutional Law

Billings Gazette, February 16, 2001
Box 36300, Billings, MT 59107
Fax: 406-657-1208

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 it’s necessary to uphold societal norms.

Rep. Paul Clark, D-Trout Creek, who supported the bill to remove the law from the books, said the committee’s 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 it’s quite rare that the Legislature refuses to remove unconstitutional language from the law books.

Judiciary Chairman Jim Shockley, R-Victor, persuaded the committee to change HB353 significantly before the final vote. Shockley’s 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 rape.

"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.

"We’re talking about families here. We’re 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 House.

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