The battle over the fate of Montana's so-called sodomy ban, which was deemed unconstitutional in 1997, will come back up in the 2013 legislative session, when opponents hope the repeal will fare better than it has in the past, due to changes in the state Republican Party.
Re-igniting a debate that he's been fighting for most of the last decade, state Sen. Tom Facey (D-Missoula) has re-introduced legislation to repeal the state's almost 40-year-old sodomy ban, which is more accurately a ban on "sexual contact or sexual intercourse between two persons of the same sex." Facey's legislation comes after the state GOP took support for the ban out of its platform at the state Republican convention over the summer. Montana's same-sex ban was deemed unconstitutional by the state Supreme Court in 1997; the U.S. Supreme Court ruled such state bans illegal in 2003. Facey said that while the courts have ruled the bans unenforcible, only the legislature can take the words out of the state code.
"It is about dignity. We are saying, 'We will respect you,'" Facey told The Huffington Post, referring to the gay community. "It is respect and saying, 'We won't poke a finger in your eye.'"
Over a dozen states have a similar ban on the books.
Facey's legislation would specifically delete the section of the state code regarding "deviate sexual conduct" that pertains to sexual activity between individuals of the same sex. The ban, which has not been enforced in the state, carries the same potential 10-year prison sentence and $50,000 fine as bestiality. Facey's proposal passed the Republican-controlled state Senate for the first time in 2011 but failed in the GOP-controlled House. Republicans will continue to control both chambers in 2013. Gov.-elect Steve Bullock is a Democrat.
Facey is gaining Republican support for the legislation. In addition to the state GOP removing support for the ban from its platform, state Rep.-elect Nicholas Schwarderer (R-Missoula) has said he plans to co-sponsor Facey's bill. Schwarderer started the process to draft his own repeal bill when he was informed by legislative staffers that Facey had already drafted one.
"In Montana we have a legacy of respecting people's rights," Schwarderer told HuffPost. "This flies in the face of what we're about."
Schwarderer is not the first legislative Republican to support the ban's removal. In 2010, then-state Sen. John Brueggeman (R-Polson) said he'd introduce legislation on the issue. Brueggeman resigned to accept a job out of state prior to the 2011 session.
While supporters are optimistic, obstacles remain. State Sen. Verdell Jackson (R-Kalispell) told HuffPost that he plans to continue his staunch opposition to removing the ban. Jackson said its removal would open the door to teaching about same-sex marriage in schools and would lead to gays attempting to "proselytize" children "on the street." Jackson said that he supports amending the ban instead to prevent the government from investigating consensual sex in private places.
"I used to be a school administrator," Jackson told HuffPost. "If you talk about sodomy during puberty, it messes them up."
Jackson also said he objected to school books that discuss same-sex marriage.
"These books put it on the same level as heterosexual marriage, that it's an option to consider," Jackson said. "If it is taught in school, they figure, 'Yes, this is fine.' I am very adamant when it comes to protecting children."
The first openly gay man elected to the Montana legislature said he's optimistic.
"I hope the fact that the Republicans pulled the language out of the platform of wanting to send gays and lesbians to jail for who they decide to love is a good sign," state Rep. Bryce Bennett (D-Missoula) said. "But actions speak louder than words."