Montana Is About to Decriminalize Gay Sex, but Not Without Another GOP Fight

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If you thought Virginia was weird, it's easier to pass a law through Montana's state legislature that allows citizens to eat their own roadkill than it is to strike down a law that made gay sex a felony punishable with up to 10 years in jail and a $50,000 fine. The latter is slated to happen in a House vote Wednesday, even though three-dozen Montana Republicans still don't want to see the (unconstitutional) law taken off the books. Montana's "House voted 64-36 to endorse Senate Bill 107, one day after House members narrowly voted to remove it from the House Judiciary Committee," reports the Billings Gazette's Mike Dennison. The state Senate passed the bill months ago, but it "became stuck in the House Judiciary Committee when the Republican-controlled panel tabled it," according to the AP.

Update, 4:34 p.m. Eastern: SB-107 has passed and snagged a Republican supporter, reports John S. Adams of The Great Falls Tribune:

SB107 pickes up another supporter, passes on third reading 65-33. Bill moves on to governor. #mtleg #LGBT

— John S.Adams (@TribLowdown) April 10, 2013

To put that strong Republican resistance into some perspective, Montana's House Bill 247, which would allow Montanans to eat their roadkill, passed the House in February on its second reading (like SB 107) and its third readings by votes of 99-1 and 95-3, respectively. SB 107 would finally change the definition of "deviate sexual relations" in the state—a full 16 years after the state Supreme Court ruled that the language criminalizing gay sex as unconstitutional—and no longer lump in gay sex as the same kind of crime as having sex with an animal. Here's the passage that's still giving 36 of the 61 Republicans in the House some problems:

The Montana Supreme Court decision aside, we're also 10 years removed from the U.S. Supreme Court decision in Lawrence vs. Texas that made anti-sodomy laws unconstitutional and same-sex sex legal in every U.S. state and territory, and still 13 other states have anti-sodomy laws on the books. That number should come down to 12, as a court on Wednesday denied Ken Cuccinelli, Virginia's attorney general and potential next governor, his efforts to challenge a ruling that said that state's anti-sodomy law was unconstitutional. But as Virginia and Montana make clear, just because the constitution says something about gay sex doesn't mean local conservative lawmakers won't put up a fight. Buzzfeed's Chris Geidner explains how the Montana law remained, even though federal and state decisions deemed it unconstitutional: "The courts' actions do not actually take the laws off the books, but rather render them unconstitutional to be enforced," Geidner writes. "Few states have, in fact, repealed the laws since the 2003 ruling that applied nationwide."

So essentially, the Montana bill to get rid of the existing law is a formality—to make a point about gay rights and wipe an ugly part of the state's history off the books, which is something that one of the bill's supporters says people have been trying to do since 1991: "I was excited and shocked at the same time," Rep. Bryce Bennett, Montana's only out gay lawmaker, told Geidner. "Folks have been trying to pull this language from our statute in Montana since 1991, so this has been a long time coming and I almost couldn't believe when I saw we had 60 votes up there."

On the other side of that, though, is the bloc of 36 Republicans who want to make a point about keeping the law in place:

• "Sex that doesn't produce people is deviant," Rep. Dave Hagstrom, who voted against bringing the bill to the floor, is quoted as saying in the Billings Gazette. "That doesn't mean it’s a problem. It just means it's not doing its primary purpose."
• "If some second-grade teacher wants to take her lover and introduce her lover to the kids, I don't think there is anything that the school board can do to stop that," said Rep. Jerry O’Neil, who also voted against the bill.

We hate to break it to the lawmakers in Helena, but there are plenty of people, both gay and straight, who are having sex (perhaps even right now) without the sole purpose of trying to "produce people." Justice Kagan said as much during the Supreme Court's Prop. 8 hearing last month. A final vote should arrive Wednesday afternoon. 

Photo by: Alvaro Pantoja via Shutterstock

This article is from the archive of our partner The Wire.