Montana Senate moves to strike unconstitutional provision criminalizing gay sex

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Montana state Sen. Christine Kaufmann. - PHOTO: Provided

The Montana Senate this week overwhelming backed a measure to strike an obsolete state law that criminalizes gay sex – a proposal that still faces an uncertain path in the House.

Senate Bill 107 repeals an anti-gay law that was ruled unconstitutional in 1997 by the Montana Supreme Court. But the state’s deviate sexual relations law still makes illegal “sexual contact or sexual intercourse between two persons of the same sex.”

Democrats argued that it is time to remove the hurtful language from the statutes, even if it is not enforceable. The Senate backed the plan 38-10 in an initial vote.

“I have chosen Montana as my home for the last 30 years because it feeds my spirit. But there is one thing that grieves my spirit and that is this law on the books that says I am a felon,” said state Sen. Christine Kaufmann, a Helena Democrat and lesbian. “It says I deserve to be in prison for 10 years for making a family with the woman I love.”

No one spoke in opposition of the bill, and it passed with little fanfare by a chamber that would clearly like to stop debating the bill.

Advocates said that Montana is one of 18 states that still have such laws on the books even though courts have ruled them unconstitutional.

Kaufmann said she first started pushing such a bill 22 years ago at the Legislature – only to see it die year after year. Even though some states are now allowing gay marriage, she said Montana is still debating a law thrown out long ago in the courts.

“The law of course is unconstitutional,” Kaufmann said. “But words do matter, and those words are there in our law. And I don’t know any reason why they are there but to remind me and people like me that we are despised.”

But the bill will likely head to the conservative House Judiciary Committee. A similar measure cleared the Senate in 2011 only to die in that House committee.

Democrats, who have picked up a few seats in that chamber, hope this year will be different. Advocates also point out that since then, the Montana Republican Party has removed from its platform the position that it seeks to make homosexual acts illegal. The party remains opposed to gay marriage.

Another gay-rights measure heard this week in a House committee likely faces a tougher road.

House Bill 481 would extend anti-discrimination protections, like those that protect many minorities, to sexual orientation and gender identity.

“These are our sons, our daughters, our neighbors, our constituents, and our friends,” McClafferty said. “And they are entitled to live a life free from discrimination.”

Montana Superintendent of Public Instruction Denise Juneau said her student advisory board deals with bullying in schools.

“They are really waiting for adults to model the way, and to reflect the values of every Montanan in this state,” Juneau said. “This bill goes a long way to do that.”

Previous efforts have stalled amid criticism from social conservatives.