Skip to comments.Montana lawmakers pass bill decriminalizing gay sex
Posted on 04/11/2013 1:13:50 PM PDT by Olog-hai
The woman who led the court battle to strike down a Montana law that made gay sex illegal knows that having the unconstitutional law struck from the books is a symbolic act.
All the same, Linda Gryczan began to cry when the state House finally brought the issue to the floor on Monday.
Senate Bill 107, the measure that strikes from the state code the obsolete language criminalizing gay sex as deviate sexual conduct, passed its final legislative hurdle Wednesday with a 65-34 vote in the House.
Gryczan was the lead plaintiff in a 1995 lawsuit that led to the unanimous 1997 Montana Supreme Court decision that ruled the law unconstitutional.
(Excerpt) Read more at hosted.ap.org ...
What about sheep?.......
Homosexual sodomy is still deviant conduct, always will be.
Decriminalizing it doesn’t make it natural, moral, safe, or righteous.
I guess Age groups were not defined! Sheep are nervous in Montana what about Kids?!
These folks are not elected, but they’ve been significantly affecting the American legal system for decades, laying the groundwork for the judicial/legal disaster we see taking shape for the past few decades.
To destroy a society, you don’t need to control everyone, just a significant portion of the leadership of the society.
Utah, Idaho, Montana, Wyoming....All will eventually go the way of Colorado, infected by the Kaliforiak carpetbaggers. (They leave they place the sh!t in to sh!t in somebody else’s place.)
Is “Linda Gryczan” a pseudonym or a real woman?
If a real woman, what possessed her to become the champion of anal sex?
Poor choice of words, no?
Do you remember the movie “ Sleepless in Seatle “. Well, the sequel is called “ Sheepless in Montana “
The phrase "deviate sexual relations" is defined at § 45-2-101(20), MCA, as "sexual contact or sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal." "Sexual contact" and "sexual intercourse" are defined as:
"Sexual contact" means any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.
Section 45-2-101(65), MCA.
"Sexual intercourse" means penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by any body member of another person, or penetration of the vulva or anus of one person by any foreign instrument or object manipulated by another person for the purpose of arousing or gratifying the sexual desire of either party. Any penetration, however slight, is sufficient.
How do you enforce it?
Respondents argue that, although they have never been arrested or prosecuted under the statute, they have been injured and continue to be injured by the mere existence of the statute. They contend that the damage to their self-esteem and dignity and the fear that they will be prosecuted or will lose their livelihood or custody of their children create an emotional injury that gives them standing to challenge the statute. For example, two Respondents are employed or are seeking employment in positions requiring state licenses. Because they engage in conduct classified as a felony, they fear they could lose their professional licenses. One Respondent is the mother of a five-year old boy. She fears that the statute could be used to limit her relationship with her son.
pedophilia is next I guess
It is no longer criminal. It is still perverted.
However, the court issued a permanent injunction forbidding the State to enforce the statute against Respondents or any other people in the State of Montana who engage in consensual, adult, private, same-gender sexual conduct. In addressing this issue we determine, first, whether Respondents' sexual conduct prohibited by § 45-5-505, MCA, is protected by Montana's constitutional right of privacy and then, if it is protected, whether the State has demonstrated a compelling interest for infringing that right.
They've got a case, particularly since homosexuality was removed from the DSM. How do you enforce it?
The one issue that never comes up is that homosexuality isn't private. It's pushed in public and in government schools as normal. It isn't normal, but is is criminal? I don't think the court erred with this one.
Fundamentally, we've allowed them to dominate and form the discussion. We're locked outside the bubble of information because you can't use God (which is very reasonable and American), but because it's a liberty issue you can barely get the statistics out there that show just how abnormal and unhealthy homosexuality is.
3. Whether § 45-5-505, MCA, violates Article II, Section 4 of the Montana Constitution by infringing on Respondents' dignity as human beings, discriminating against them on the basis of sex, or denying them equal protection of the laws to the extent it prohibits consensual, private, same-gender sexual conduct between adults.
Is it because the sex acts themselves infringe on the dignity of rational human beings?
His reasoning is very sound:
I agree with the majority that § 45-5-505, MCA, is unconstitutional as applied to noncommercial homosexual activity engaged in by adults consensually and in private.
However, unlike the majority, I would base that determination on violation of constitutional guarantees of equal protection under the Fourteenth Amendment to the United States Constitution and Article II, Section 4 of the Montana Constitution.
The Equal Protection Clause prohibits any classification scheme which fails a rational basis analysis. Under rational basis analysis, the Court's inquiry must be whether there exists a legitimate government objective which bears some identifiable rational relationship to the classification made. See Burlington Northern R. Co. v. Ford (1992), 504 U.S. 648, 651, 112 S.Ct. 2184, 2186, 119 L.Ed.2d 432, 438; Cottrill v. Cottrill Sodding Service (1987), 229 Mont. 40, 43, 744 P.2d 895, 897.
As is discussed at some length in the majority opinion, § 45-5-505, MCA, bears no rational relationship to either of its suggested government purposes, as an expression of societal mores or to protect public health. As an expression of societal mores, the statute is both overbroad and underinclusive, forbidding consensual intimate touching between homosexuals without any evidence that such conduct was historically forbidden, yet permitting heterosexuals to engage in conduct long deemed inappropriate by some segments of society, such as anal sex, sex outside of marriage, and non-procreative sex.
Furthermore, the State has not demonstrated, nor can it demonstrate, that the purpose of § 45-5-505, MCA, was or is to protect public health. Not one of the three public health experts who testified in this case suggested that § 45-5-505, MCA, offered any benefit to the public health.
In Com. v. Wasson (Kentucky 1992), 842 S.W.2d 487, the Supreme Court of Kentucky struck down a statute similar to § 45-5-505, MCA, which defined as a misdemeanor criminal offense "deviate sexual intercourse with another person of the same sex." In doing so, the court reasoned:
In the final analysis we can attribute no legislative purpose to this statute except to single out homosexuals for different treatment for indulging their sexual preference by engaging in the same activity heterosexuals are now at liberty to perform. By 1974 [when the Kentucky statute was enacted] there had already been a sea change in societal values insofar as attaching criminal penalties to extramarital sex. The question is whether a society that no longer criminalizes adultery, fornication, or deviate sexual intercourse between heterosexuals, has a rational basis to single out homosexual acts for different treatment. Is there a rational basis for declaring this one type of sexual immorality so destructive of family values as to merit criminal punishment whereas other acts of sexual immorality which were likewise forbidden by the same religious and traditional heritage of Western civilization are now decriminalized? If there is a rational basis for different treatment it has yet to be demonstrated in this case. We need not sympathize, agree with, or even understand the sexual preference of homosexuals in order to recognize their right to equal treatment before the bar of criminal justice. Wasson, 842 S.W.2d at 501.
No rational basis has been demonstrated for the classification created under § 45-5-505, MCA. I conclude that the statute is violative of the Equal Protection Clauses of the Montana and the United States Constitutions as applied to persons of the same sex engaging in noncommercial, consensual, private sexual conduct, and is therefore unconstitutional. I therefore dissent and specially concur that § 45-5-505, MCA, is unconstitutional as a denial of equal protection.
So much for the unnecessary reliance by the majority on Article II, Section 10 of the Montana Constitution and now as to the basis for the majority opinion being unwise.
The opinion of the majority, I submit, is an open-door invitation to challenges of legislative enactments by the people of Montana, through their constitutionally- empowered legislature, prohibiting conduct that they believe to be destructive to Montana's society as a whole. There are many such statutes on the books that not only have a rational basis but are very important to the people of Montana.
I submit that this Court should not be surprised if one of the first challenges under the theory espoused by the majority in this case will be to § 45-5-105, MCA, which provides severe criminal sanctions for a person who purposely aids or solicits another to commit suicide. The majority opinion cites with approval the District Court's statement that "a person's decision as to sexual matters is probably one of the most private areas of a person's life." This statement is correct. However, there is something in the lives of people equally private and more important--the right to life or death.
I respectfully concur as to the result and dissent as to the reasoning used by the majority.
/S/ J. A. TURNAG
You cannot argue with his reasoning. This fight was lost back in 1972/73 when both the APAs delisted homosexuality from the DSM. They didn't do it for scientific or rational reasons, but emotional and political ones. The damage was done.
If conservatives had struck early and demanded the scientific reasons for delisting it, we might have a chance. Only by exposing the health menace - mental and physical, coupled with protecting children might we turn this around. Otherwise it is a lost cause for the short term.
Out of the bedroom in Montana and into the kitchen in New York!
We hear “consenting ADULTs” in such statutes. Except that it is in the schools. And minors may engage in it. Even with adults if they are over the age of consent.
ADULTS just makes it read as if they aren’t coming for your kids. No really.
Same with “private”. Wouldn’t be in the schools.
Can schools that have gay organizations also have BDSM clubs or swingers clubs for the teens are are sexually active? If not, why not?