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.