Montana Court Ends Gay Sex Ban ‘Constitutional Right To Privacy’ Outweighs Concerns, Justices Say

Concluding government has no business meddling in the sexual activity of consenting adults, the Montana Supreme Court on Wednesday threw out a 24-year-old ban on homosexual sex.

The law violates the right to privacy guaranteed in Montana’s Constitution and the state does not have legitimate reason for infringing on that right, the court said.

“Quite simply, consenting adults expect that neither the state nor their neighbors will be cohabitants in their bedrooms,” Justice James Nelson wrote for the court.

While society may not approve of gay sex, “there are certain rights so fundamental that will not be denied to a minority no matter how despised by society,” he said.

“Montana’s constitutional right to privacy - this right of personal autonomy and right to be let alone - includes the right of consenting adults, regardless of gender, to engage in non-commercial, private, sexual relations free of governmental interference, intrusion and condemnation,” Nelson said.

The ruling was hailed as a victory for gays and lesbians and a blow to opponents of extending rights to homosexuals. But critics said the decision undermines traditional families and will promote the spread of AIDS.

Privacy was at the heart of the lawsuit filed in 1993 by six homosexuals.

Although no one has been prosecuted under the challenged law, the suit said gays and lesbians live in fear of being charged with a crime and that takes a emotional and psychological toll.

The suit said Montana’s strong right to privacy guarantee protects the sexual relations between consenting adults, regardless of gender.

District Judge Jeffrey Sherlock of Helena agreed in February 1996 and prohibited enforcement of the law.

The Supreme Court rejected all of the state’s arguments on appeal.

Those filing the suit and other homosexuals have a right to contest the law because it harms them by repressing their sexual expression, depriving them of personal freedom, the court said.

The justices also cited a link between gay sex bans and violence toward homosexuals. “Thus, homosexuals in Montana live not only with the psychological impact of the fear of prosecution under the statute, but the fear that violence may be directed at them because they are seen as criminals,” Nelson said.

The state’s claim that the law is needed to help prevent the spread of AIDS and to protect Montana’s morals did not sway the court.

The law has no relationship to AIDS, the court said. It was enacted almost 10 years before the first AIDS case was reported in Montana and the presence of the ban has not stopped the disease from becoming the sixth-leading cause of death among middle-aged Montanans, the court said.

Laws are not constitutional just because they seek to protect the perceived morality of a majority, the court added.

Chief Justice Jean A. Turnage agreed the law is unconstitutional but on grounds it violates the mandate for all people to have equal protection of the laws and not the right to privacy.

Rep. Diane Sands, the first openly gay legislator and a founder of the homosexual advocacy group Montana Pride!, said the ruling lifts a burden from homosexuals in the state.

“To carry that law around on our backs, to realize that your society as a whole has chosen to label you a felon just because of who you choose to love” has been difficult, said the Missoula Democrat. “To have our equal protection affirmed is so fundamentally important and so exhilarating.”

Linda Gryczan of Clancy, one of those who filed the suit, said, “We are no longer called criminals for whom we love. At last we are legal citizens.”

Laurie Koutnik, executive director for Christian Coalition of Montana, said the decision is “a major blow to upholding the sanctity of marriage and traditional family values.”

“With this law being struck down, the door is open to teach that homosexuality is acceptable on par with heterosexuality in schools,” she said.

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