Last edited: December 31, 2004

Montana's Inactive Sodomy Law Remains / 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 six years.

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 reverse itself.

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 Christian beliefs."

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 symbolic message.

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four years ago that South Carolina voted to repeal its ban on interracial marriage, and just two years ago that Alabama repealed its own miscegenation law.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 individual privacy."

"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 scrutiny."

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 society."

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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