Gryczan v. State

96-202

No. 96-202

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

LINDA M. GRYCZAN, ANNE K. GEHR,
STACEY HAUGLAND, DONALD HOWARD,
DOYLE F. FORISTER, and WILLIAM C.
SUMMERS,
Plaintiffs and Respondents,

v.

STATE OF MONTANA,
Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Joseph P. Mazurek, Attorney General, Clay R. Smith, Solicitor, Helena,
Montana

For Respondents:
Holly J. Franz, Gough, Shanahan, Johnson & Waterman, Helena,
Montana; Rosemary Daszkiewicz, Cairncross & Hempelmann, Seattle,
Washington (Womenþs Law Center)

For Amici Curiae:
Prof. Larry Elison, Prof. Thomas Huff, Deirdre Runnette, University of
Montana, School of Law, Missoula, Montana (Womenþs Law Caucus);
Joan Jonkel, Missoula, Montana (Montana Public Health Association); J. Stuart
Bradshaw, Stevensville, Montana (Montana Citizens for Decency Through
Law); Mark S. Connell, Connell & Beers, Missoula, Montana; Suzanne
B. Goldberg, Ruth E. Harlow, New York, New York (Lambda Legal Defense
and Education Fund, et al.); Matthew Coles, New York, New York
(American Civil Liberties Union)

Heard:April 11, 1997
Submitted: April 17, 1997

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Decided: July 2, 1997

Filed:
__________________________________________
Clerk

Justice James C. Nelson delivered the Opinion of the Court.

The State of Montana appeals a Judgment of the District Court for the First
Judicial District, Lewis and Clark County, declaring 45-5-505, MCA,
unconstitutional
as a violation of the privacy provision of the Montana Constitution when applied to
consensual, private, same-gender sexual conduct between adults. We affirm.
The State raises the following issues:
1. Whether Respondents have standing to maintain an as-applied challenge to the
constitutionality of 45-5-505, MCA.
2. Whether 45-5-505, MCA, infringes on Respondents' right to privacy under
Article II, Section 10 of the Montana Constitution to the extent it prohibits
consensual,
private, same-gender sexual conduct between adults.
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.
Having affirmed the trial court as to issues 1 and 2, we decline to address
issue
3.
Background
On December 6, 1993, Respondents filed a declaratory judgment action, pursuant
to Title 27, chapter 8 of the Montana Code, challenging the constitutionality of that
portion of Montana's deviate-sexual-conduct statute, 45-5-505, MCA, that
criminalizes
consensual sex between adults of the same gender. Respondents contend that 45-5-
505,
MCA, is unconstitutional under Article II, Sections 4 and 10 of the Montana
Constitution
and that it violates the due process clause of the Fourteenth Amendment to the United
States Constitution.
Respondents are three men and three women residing in Montana who are
homosexuals. They assert that they have in the past and intend in the future to
engage
in conduct that violates 45-5-505, MCA. This statute provides:
Deviate Sexual Conduct. (1) A person who knowingly engages in
deviate sexual relations or who causes another to engage in deviate sexual
relations commits the offense of deviate sexual conduct.
(2) A person convicted of the offense of deviate sexual conduct shall
be imprisoned in the state prison for any term not to exceed 10 years or be
fined an amount not to exceed $50,000, or both.
(3) The fact that a person seeks testing or receives treatment for the
HIV-related virus or another sexually transmitted disease may not be used
as a basis for a prosecution under this section and is not admissible in

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evidence in a prosecution under this section.

The phrase "deviate sexual relations" is defined at 45-2-101(20), MCA, as "sexual
contact or sexual intercourse between two persons of the same sex or any form of
sexual
intercourse with an animal." "Sexual contact" and "sexual intercourse" are defined
as:
"Sexual contact" means any touching of the sexual or other intimate parts
of the person of another for the purpose of arousing or gratifying the sexual
desire of either party.

Section 45-2-101(65), MCA.

"Sexual intercourse" means penetration of the vulva, anus, or mouth of one
person by the penis of another person, penetration of the vulva or anus of
one person by any body member of another person, or penetration of the
vulva or anus of one person by any foreign instrument or object
manipulated by another person for the purpose of arousing or gratifying the
sexual desire of either party. Any penetration, however slight, is sufficient.

Section 45-2-101(66), MCA.
Section 45-5-505, MCA, was enacted in 1973 as part of the criminal law
revision.
Prior to 1973, Montana law had prohibited "crimes against nature" with persons or
animals. Section 45-5-505, MCA, was amended in 1981 to add a maximum fine of
$50,000 as part of the penalty provision. In 1991, a subsection providing a greater
penalty when the conduct was nonconsensual was deleted and a subsection prohibiting
the
use of information regarding the testing of or the treatment for the HIV-related
virus as
evidence in a prosecution was added. Efforts to repeal the statute were rejected in
1991,
1993, and 1995.
On January 18, 1994, the State moved to dismiss the declaratory judgment action
contending that Respondents lacked standing to challenge the statute, and that there
is no
justiciable controversy. The District Court denied the State's motion on June 28,
1994.
The parties filed cross-motions for summary judgment in September 1995. The District
Court subsequently granted Respondents' motion concluding that a justiciable
controversy
existed and that Respondents had standing to challenge the statute because they
feared
prosecution and were harmed by the very existence of the statute. The court also
concluded that 45-5-505, MCA, infringed on Respondents' right to privacy under
Article II, Section 10 of Montana's Constitution and that the State failed to
demonstrate
a compelling interest justifying the infringement of that right. The State appeals.
Standard of Review
Our standard of review in appeals from summary judgment rulings is de novo.
Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154,
156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we

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review a district court's grant of summary judgment, we apply the same evaluation as
the
district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County (1995), 272
Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:
The movant must demonstrate that no genuine issues of material fact exist.
Once this has been accomplished, the burden then shifts to the non-moving
party to prove, by more than mere denial and speculation, that a genuine
issue does exist. Having determined that genuine issues of fact do not
exist, the court must then determine whether the moving party is entitled to
judgment as a matter of law. We review the legal determinations made by
a district court as to whether the court erred.

Bruner, 900 P.2d at 903 (citations omitted).

Issue 1.

Whether Respondents have standing to maintain an as-applied challenge
to the constitutionality of 45-5-505, MCA.
The State maintains that without a concrete factual context, Respondents'
challenge presents a political dispute properly decided in a legislative and not in
a
judicial forum. The State contends that to establish a justiciable controversy under
Article VII, Section 4(1) of the Montana Constitution, Respondents are required to
show
an "injury in fact" and that no such injury exists here because there is no evidence
of a
credible threat of prosecution under the statute since no one has been prosecuted for
engaging in consensual, adult, private, same-gender sexual conduct since the statute
was
enacted. The State also contends that Respondents do not have standing to challenge
the
constitutionality of 45-5-505, MCA, because they have never been arrested or
prosecuted for violating the statute. The State maintains that the mere
apprehension of
prosecution or the fact that a person may feel denigrated by the law is not
sufficient for
standing purposes and where an as-applied challenge is at stake, as in this case,
resolution
of the constitutional issue should await an actual instance of the statute being
applied.

Respondents brought this action under the Uniform Declaratory Judgments Act (the
Act) found at Title 27, Chapter 8, of the Montana Code. Respondents argue that this
Court has held that a party raising a "bona fide constitutional issue" can seek
relief from
the courts through a declaratory judgment action. Stuart v. Dept. of Social & Rehab.
Serv. (1991), 247 Mont. 433, 438-39, 807 P.2d 710, 713 (quoting Mitchell v. Town of
West Yellowstone (1988), 235 Mont. 104, 109-10, 765 P.2d 745, 748). Furthermore,
Respondents point out, the Act itself provides that it is remedial and that it is to
be
liberally construed and administered to permit courts "to afford relief from
uncertainty

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and insecurity with respect to rights, status, and other legal relations . . . ."
Section 27-
8-102, MCA.
Respondents argue that, although they have never been arrested or prosecuted
under the statute, they have been injured and continue to be injured by the mere
existence
of the statute. They contend that the damage to their self-esteem and dignity and
the fear
that they will be prosecuted or will lose their livelihood or custody of their
children create
an emotional injury that gives them standing to challenge the statute. For example,
two
Respondents are employed or are seeking employment in positions requiring state
licenses. Because they engage in conduct classified as a felony, they fear they
could lose
their professional licenses. One Respondent is the mother of a five-year old boy.
She
fears that the statute could be used to limit her relationship with her son.
To address this issue we look first to whether the case presents a justiciable
controversy and then to whether Respondents have standing to bring this
constitutional
challenge. The test of whether a justiciable controversy exists is: (1) that the
parties
have existing and genuine, as distinguished from theoretical, rights or interests;
(2) the
controversy must be one upon which the judgment of the court may effectively operate,
as distinguished from a debate or argument invoking a purely political,
administrative,
philosophical or academic conclusion; and (3) the controversy must be one the
judicial
determination of which will have the effect of a final judgment in law or decree in
equity
upon the rights, status or legal relationships of one or more of the real parties in
interest,
or lacking these qualities, be of such overriding public moment as to constitute the
legal
equivalent of all of them. Lee v. State (1981), 195 Mont. 1, 6, 635 P.2d 1282, 1284-
85
(citing Matter of Secret Grand Jury Inquiry (1976), 170 Mont. 354, 357, 553 P.2d 987,
990). This Court concluded in Lee that the plaintiff in that case fit all three of
these
criteria because he was directly affected by the operation of the statute at issue.
So too, Respondents in the instant case are directly affected by 45-5-505,
MCA,
and the controversy at issue fulfills each of these three criteria. First,
Respondents have
a genuine interest in the outcome of this case. Second, the controversy is one upon
which the judgment of the court may effectively operate. The District Court issued a
permanent injunction forbidding the State to enforce the statute against Respondents
or
any other Montanans who engage in homosexual activity if that activity is consensual,
private and engaged in by adults. Third, the District Court's determination has the

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effect
of a final judgment in law upon Respondents' rights.
The question of standing is whether the litigant is entitled to have the court
decide
the merits of the dispute or of particular issues. Helena Parents v. Lewis & Clark
Cty.
(1996), 277 Mont. 367, 371, 922 P.2d 1140, 1142 (citing Warth v. Seldin (1975), 422
U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343). Furthermore, when standing is
placed at issue in a case, the question is whether the person whose standing is
challenged
is a proper party to request an adjudication of a particular issue and not whether
the issue
itself is justiciable. Helena Parents, 922 P.2d at 1142 (citing Flast v. Cohen
(1968), 392
U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947).
We have previously stated that the following criteria must be satisfied to
establish
standing:
(1) The complaining party must clearly allege past, present or
threatened injury to a property or civil right; and (2) the alleged injury must
be distinguishable from the injury to the public generally, but the injury
need not be exclusive to the complaining party.

Helena Parents, 922 P.2d at 1142-43 (citing Sanders v. Yellowstone County (1996),
276
Mont. 116, 119, 915 P.2d 196, 198; Stewart v. Bd. of Cty. Com'rs of Big Horn Cty.
(1977), 175 Mont. 197, 201, 573 P.2d 184, 186).
The State argues that since the statute has never been enforced against
consenting
adults, there is no "threatened injury" to Respondents. The State relies on Doe v.
Duling
(4th Cir. 1986), 782 F.2d 1202, for its contention that prosecution under a criminal
statute must be imminent before standing to challenge the statute is established.
Duling
involved a challenge by two unmarried adults to Virginia statutes prohibiting
fornication
and cohabitation by unmarried persons. Both plaintiffs alleged they had engaged in
sexual intercourse with unmarried members of the opposite sex and one plaintiff
alleged
she had cohabited with an unmarried man. Neither plaintiff had been prosecuted or
threatened with prosecution under the statutes, but they alleged that they were
fearful of
prosecution and that that fear had caused them to refrain from engaging in the
prohibited
activities. Duling, 782 F.2d at 1204.
The United States District Court for the Eastern District of Virginia found that
plaintiffs had standing to maintain the action and ruled in their favor on the
merits. The
Fourth Circuit Court of Appeals reversed, holding that plaintiffs did not have
standing.
The Court of Appeals stated that an individual challenging the validity of a criminal
statute must show a threat of prosecution both real and immediate to present a case

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or
controversy and that the plaintiffs in Duling faced only the most theoretical threat
of
prosecution. Duling, 782 F.2d at 1206.
We conclude that the State's reliance on Duling is misplaced. The challenged
statutes in Duling had not been enforced for more than 100 years and there was no
evidence that they were anything more than historical artifacts. While 100 years of
nonenforcement may make a law so moribund that any fear of prosecution is imaginary,
the United States Supreme Court has held that even 40 years of nonenforcement does
not
deprive a court of jurisdiction to determine a law's constitutionality. See, e.g.,
Epperson
v. Arkansas (1968), 393 U.S. 97, 101-02, 89 S.Ct. 266, 269, 21 L.Ed.2d 228. The
challenged statute in the case before us is only 24 years old and has been amended as
recently as 1991. This, and other prior amendments, make it clear that the Montana
Legislature not only contemplates prosecution, but also considers the possibility
realistic
enough to require the addition of a subsection preventing the use of evidence of
testing
or treatment for the HIV-related virus or other sexually-transmitted diseases as a
basis for
prosecution under the statute. Moreover, the legislature has decided three times in
the
last seven years not to repeal the statute.
The State's position that Respondents lack standing because they have not been
prosecuted under the statute is at odds with prior decisions of this Court as well
as prior
decisions of the United States Supreme Court. In Lee v. State (1981), 195 Mont. 1,
635
P.2d 1282, we did not require the plaintiff to suffer arrest to challenge a criminal
statute.
We held in Lee, that plaintiff had standing to challenge the 55-mph speed limit even
though he had not been arrested for speeding, because otherwise, acts of the
legislature
that affect large segments of the public would be insulated from judicial attack.
Lee, 635
P.2d at 1285.
The State argues that Lee is distinguishable from the case before us because Lee
involved a facial challenge to a statute, while the case before us involves an as-
applied
challenge to a statute. In addition, the State points out that the challenged
statute in Lee
had been enforced for some time before it was challenged, while the statute here has
not
been enforced against consenting adults. We conclude that Lee is not distinguishable
from the instant case simply because the statute at issue here has not been enforced
against persons such as Respondents. Here, Respondents are precisely the
individuals the
statute is designed to impact. Moreover, there is nothing to prevent a county
attorney
from enforcing the statute against consenting adults. "It is well established that
a decision

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as to whether or not to prosecute and what charge to bring against an individual is
entirely within the discretion of the county attorney." Helena Parents, 922 P.2d at
1145
(citing State v. Lemmon (1984), 214 Mont. 121, 126, 692 P.2d 455, 457).
Similarly, the United States Supreme Court has concluded that a plaintiff need
not
suffer arrest to challenge a criminal statute. See Epperson, 393 U.S. at 100-102, 89
S.Ct. at 268-69, 21 L.Ed.2d 228 (high school science teacher challenging the
constitutionality of a 1928 criminal law prohibiting the teaching of evolution found
to
have standing without any record of prosecutions under the law because the teacher
was
directly affected by the law); Doe v. Bolton (1973), 410 U.S. 179, 93 S.Ct 739, 35
L.Ed.2d 201 (doctors challenging certain provisions of Georgia's abortion laws found
to
have standing without arrest because they were the ones against whom the criminal
statutes directly operated); Babbitt v. United Farm Workers (1979), 442 U.S. 289, 99
S.Ct. 2301, 60 L.Ed.2d 895 (a union and its members had standing to challenge a
statute
imposing criminal penalties for certain types of union publicity despite the state's
argument that the criminal penalties had never been and might never be applied);
Virginia
v. American Booksellers Assn. (1988), 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782
(booksellers had standing to bring a pre-enforcement challenge to a statute making it
unlawful to knowingly display sexually-explicit material in a manner accessible to
juveniles because the law was aimed directly at the booksellers).
The existence of a criminal law aimed specifically at one group of citizens,
the
enforcement of which has not been disavowed by the state, creates a fear of
prosecution
sufficient to confer standing unless there are other circumstances which make that
fear
"imaginary" or "wholly speculative." Babbitt, 442 U.S. at 302, 99 S.Ct. at 2310-11,
60 L.Ed.2d 895. Moreover,
when fear of criminal prosecution under an allegedly unconstitutional statute
is not imaginary or wholly speculative a plaintiff need not "first expose
himself to actual arrest or prosecution to be entitled to challenge [the]
statute." [Citation omitted.] . . . [T]he criminal penalty provision applies
in terms to "[a]ny person . . . who violates any provision" of the Act.
Moreover, the State has not disavowed any intention of invoking the
criminal penalty provision against [plaintiffs]. Appellees are thus not
without some reason in fearing prosecution. . . . In our view, the positions
of the parties are sufficiently adverse with respect to the . . . provision .
. . to present a case or controversy within the jurisdiction of the District
Court.

Babbitt, 442 U.S. at 302, 99 S.Ct. at 2310-11, 60 L.Ed.2d 895. Additionally, at
least
one circuit court has held that nothing short of an express unconditional statement
that the
law will not be enforced will bar plaintiffs from challenging a law. See, e.g.,
United

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Food & Com. Workers Intrn. v. IBP, Inc. (8th Cir. 1988), 857 F.2d 422, 427-28. Here,
the State has made no such disavowal.
In addition to alleging a past, present or threatened injury, Respondents must
establish that the alleged injury is distinguishable from any injury to the general
public,
but the injury need not be exclusive to Respondents. Helena Parents, 922 P.2d at
1142-
43. Here, the District Court concluded that Respondents are affected
psychologically by
the statute in a more acute fashion than persons who do not engage in same-gender
sexual
conduct. Thus, the general public does not suffer any injury under the statute
because
the statute does not criminalize sexual conduct between heterosexuals. The statute
only
criminalizes sexual conduct between homosexuals.
The psychological injuries suffered by Respondents stem from the repression of
their desires for sexual expression and from deprivation of their personal
autonomy. In
addition, there is evidence to show that there is a correlation between homosexual
sodomy
laws and homophobic violence. The National Institute for Justice has concluded that
gays
are the most frequent victims of hate violence today. 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.
The State, on the other hand, contends that any psychological harm the statute
may
inflict upon Respondents is not enough to establish standing. The State relies on
Allen
v. Wright (1984), 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556, for this contention.
In Allen,
the parents of several black children attending public school challenged the failure
of the
Internal Revenue Service to deny tax-exempt status to private schools allegedly
discriminating on the basis of race. Since these parents had not attempted and had
no
desire to attempt to enroll their children in the schools, the United States Supreme
Court
held that the parents did not have standing as they had not alleged a personal injury
traceable to the schools' allegedly unlawful conduct. The case before us on appeal is
distinguishable from Allen in that, rather than relying on a general stigmatic
injury,
Respondents have presented evidence of specific psychological effects caused by the
statute. Moreover, unlike the parents who brought suit in Allen, Respondents are
those
persons who are personally denied equal treatment.
Because the legislature does not regard the statute as moribund and because
enforcement has not been foresworn by the Attorney General, we agree that Respondents
suffer a legitimate and realistic fear of criminal prosecution along with other

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psychological harms. Respondents are precisely the individuals against whom the
statute
is intended to operate. This is sufficient to give Respondents standing to
challenge the
constitutionality of the statute. Moreover, to deny Respondents standing would
effectively immunize the statute from constitutional review.
Accordingly, we hold that a justiciable controversy exists and that Respondents
have standing to challenge the constitutionality of 45-5-505, MCA.
Issue 2.

Whether 45-5-505, MCA, infringes on Respondents' right to privacy
under Article II, Section 10 of the Montana Constitution to the extent
it prohibits consensual, private, same-gender sexual conduct between
adults.

In its February 16, 1996 Order on Motions for Summary Judgment, the District
Court concluded that 45-5-505, MCA, violates Respondents' right to privacy
guaranteed
by the Montana Constitution and that that invasion of privacy is not justified by any
compelling state interest. The court recognized that since Respondents did not
present a
facial attack upon the statute, it could not declare the statute unconstitutional as
to any
and all sets of circumstances that might arise. However, the court issued a
permanent
injunction forbidding the State to enforce the statute against Respondents or any
other
people in the State of Montana who engage in consensual, adult, private, same-gender
sexual conduct. In addressing this issue we determine, first, whether Respondents'
sexual
conduct prohibited by 45-5-505, MCA, is protected by Montana's constitutional right
of privacy and then, if it is protected, whether the State has demonstrated a
compelling
interest for infringing that right. We begin our discussion with a brief overview
of the
right of privacy under the federal constitution.
The federal constitution does not explicitly grant citizens the right to
privacy. That
right has been inferred, however, from other provisions of the constitution and is
used
particularly in search and seizure contexts. Justice Louis Brandeis, in his
dissenting
opinion in Olmstead v. United States first argued that the Fourth Amendment protected
an individual's right of privacy from invasions by the government.
The makers of our Constitution . . . conferred, as against the Government,
the right to be let alone--the most comprehensive of rights and the right
most valued by civilized men. To protect that right, every unjustifiable
intrusion by the Government upon the privacy of the individual, whatever
the means employed, must be deemed a violation of the Fourth
Amendment.

Olmstead v. United States (1928), 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed.2d

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944, overruled by Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.
Ed.2d
576.
In his concurrence to the majority's opinion in Katz, Justice Harlan summarized
the rule that has emerged from Katz and from prior decisions regarding privacy in the
context of a search as requiring, "first that a person have exhibited an actual
(subjective)
expectation of privacy and, second, that the expectation be one that society is
prepared
to recognize as 'reasonable.'" Katz, 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d
576.
This two-prong test was later adopted by the United States Supreme Court in its
decision
in Smith v. Maryland (1979), 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220.
In addition to a right of privacy underlying the Fourth Amendment, an aspect of
privacy has been tied to an individual's liberty interest. In Griswold v.
Connecticut
(1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, the United States Supreme Court
held that laws forbidding the use of contraceptive devices violated the right of
marital
privacy which the Court determined is within the penumbra of specific guarantees of
the
Bill of Rights. Six of the justices deciding Griswold recognized the right of
privacy to
be a fundamental right protected by the federal constitution.
While the right of privacy enunciated in Griswold has been recognized by the
United States Supreme Court to protect certain personal decisions, other personal
choices
have been excluded. In Bowers v. Hardwick (1986), 478 U.S. 186, 106 S.Ct. 2841, 92
L.Ed.2d 140, after being charged with violating a Georgia statute criminalizing
sodomy
by committing that act with another adult male in the privacy of his home, Hardwick
brought suit to challenge the constitutionality of the statute. The United States
Supreme
Court determined that the federal constitution does not confer a fundamental right
upon
homosexuals to engage in sodomy, thus the statute was held to be constitutional.
However, Justice Blackmun dissenting in Bowers, articulated that Bowers was not about
the right to engage in homosexual sodomy, but rather it was about "the right to be
let
alone" as enunciated by Justice Brandeis' dissent in Olmstead. Bowers, 478 U.S. at
199,
106 S.Ct. at 2848, 92 L.Ed.2d 140.
Regardless of whether Bowers was correctly decided, we have long held that
Montana's Constitution affords citizens broader protection of their right to privacy
than
does the federal constitution. See State v. Siegal (Mont. 1997), 934 P.2d 176, 183,
54
St.Rep. 158, 163-64. Unlike the federal constitution, Montana's Constitution
explicitly
grants to all Montana citizens the right to individual privacy. Article II, Section
10 of

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the Montana Constitution provides:
Right of privacy. The right of individual privacy is essential to the
well-being of a free society and shall not be infringed without the showing
of a compelling state interest.

Since the right to privacy is explicit in the Declaration of Rights in Montana's
Constitution, it is a fundamental right and any legislation regulating the exercise
of a
fundamental right must be reviewed under a strict-scrutiny analysis. To withstand a
strict-scrutiny analysis, the legislation must be justified by a compelling state
interest and
must be narrowly tailored to effectuate only that compelling interest. Siegal, 934
P.2d
at 184 (citing State v. Pastos (1994), 269 Mont. 43, 47, 887 P.2d 199, 202).
The District Court held that 45-5-505, MCA, violated Respondents' right to
privacy under the Montana Constitution. Relying on the two-prong test set forth in
Katz
and adopted by this Court in Hastetter v. Behan (1982), 196 Mont 280, 639 P.2d 510,
the District Court concluded that Respondents' same-gender sexual activities are
covered
by Montana's right to privacy. The court found that Respondents have an expectation
of privacy in the activities proscribed by the statute since "a person's decision as
to sexual
matters is probably one of the most private areas of a person's life." Furthermore,
the
court determined that while many Montanans do not approve of homosexual activity,
that
is not to say that society is unwilling to recognize as reasonable an expectation of
privacy
as to consensual, adult, private, same-gender sexual conduct. Because the State
failed
to demonstrate a compelling interest justifying the infringement of Respondents'
right to
privacy, the court granted summary judgment to Respondents.
The State, while acknowledging the existence of an individual's right to
privacy
under Article II, Section 10, contends that it does not immunize adult same-gender
sexual
conduct from state regulation. The State maintains that the United States Supreme
Court
already resolved this issue in Bowers and that no right to privacy for this conduct
exists.
The State also contends that the appropriate test for determining whether a
fundamental
right to privacy exists is not the two-part test set out in Katz regarding
informational
privacy, but rather, a test regarding personal-autonomy privacy used by the United
States
Supreme Court in Bowers and derived from Palko v. Connecticut (1937), 302 U.S. 319,
58 S.Ct. 149, 82 L.Ed.2d 288, overruled on other grounds by Benton v. Maryland
(1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. This test may be articulated as
whether the statute in question "violate[s] those 'fundamental principles of liberty

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and
justice which lie at the base of all our civil and political institutions.'"
Palko, 302 U.S.
at 328, 58 S.Ct. at 153, 82 L.Ed.2d 288.
We agree with the District Court that under traditional Katz analysis,
Respondents'
same-gender, consensual sexual conduct is protected by Montana's constitutional
right of
privacy. It cannot seriously be argued that Respondents do not have a subjective or
actual expectation of privacy in their sexual activities. With few exceptions not
at issue
here, all adults regardless of gender, fully and properly expect that their
consensual
sexual activities will not be subject to the prying eyes of others or to governmental
snooping or regulation. Quite simply, consenting adults expect that neither the
state nor
their neighbors will be co-habitants of their bedrooms. Moreover, while society may
not
approve of the sexual practices of homosexuals, or, for that matter, sodomy, oral
intercourse or other sexual conduct between husband and wife or between other
heterosexuals, that is not to say that society is unwilling to recognize that all
adults,
regardless of gender or marital state, at least have a reasonable expectation that
their
sexual activities will remain personal and private. Accordingly, we disagree with
the
State that the Katz test is inappropriate. It is, and under that test Respondents'
right to
privacy in their consensual, non-commercial sexual conduct is protected under
Article II,
Section 10 of Montana's Constitution.
As to Palko, this Court applied a Palko-derived test in Town of Ennis v. Stewart
(1991), 247 Mont. 355, 807 P.2d 179, along with the Katz test. In Ennis, several
property owners refused to hook up to the city water system arguing that they had a
privacy right to use the wells in their homes. We stated that under the federal
constitution, the right to privacy has been extended only to those rights which are
fundamental or implicit in the concept of ordered liberty. Ennis, 807 P.2d at
182. We
held in Ennis that the type of interest being infringed was not the kind sufficient
for
defendants to invoke the special protections of their privacy right. We stated that
because
the right being asserted was not of constitutional magnitude the Town need not show a
compelling interest to satisfy its ends, rather it need only demonstrate that the
ordinance
bears a rational relationship to the achievement of a legitimate state interest.
Ennis, 807
P.2d at 182.
While hooking up to a private well may not be the type of interest sufficient to
invoke the special protections of a privacy right, adults engaging in consensual,
non-
commercial sexual activities in private is sufficient. More importantly, however,

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regardless of whether same-gender, consensual sexual conduct is accorded federal
constitutional, personal-autonomy privacy protection as a fundamental right or as a
right
implicit in the concept of ordered liberty, Montana's Constitution, as we have
already
pointed out, explicitly protects individual or personal-autonomy privacy as a
fundamental
right by its placement in the Declaration of Rights. In fact, it is hard to imagine
any
activity that adults would consider more fundamental, more private and, thus, more
deserving of protection from governmental interference than non-commercial,
consensual
adult sexual activity.
Accordingly, whether we apply the Katz test or the Palko test, we conclude that
Respondents' right of privacy under Article II, Section 10 of Montana's Constitution
includes the right to engage in consensual, non-commercial, private, same-gender
sexual
conduct with other adults free of governmental interference or regulation.
Finally, the State points out that the delegates to the 1972 Montana
Constitutional
Convention defeated a proposal to include a provision in the Declaration of Rights
stating
that "[p]rivate sexual acts between consenting adults do not constitute a crime."
The
State contends that this reflects an unwillingness to protect this type of conduct,
even
under the privacy clause. We do not agree. The verbatim transcript of the 1972
Constitutional Convention is bereft of any discussion as to why the proposal was
defeated.
While the State can speculate that this reflects an unwillingness to protect this
type of
conduct, one can also speculate that the delegates believed it was already protected
under
the privacy clause.

In summary, and regardless of the sort of legal test used, we agree with the
statement of the Tennessee Court of Appeals when faced with a similar question of
the
extent of an individual's right to privacy under the Tennessee Constitution:
We think it is consistent with this State's Constitution and constitutional
jurisprudence to hold that an adult's right to engage in consensual and
noncommercial sexual activities in the privacy of that adult's home is a
matter of intimate personal concern which is at the heart of Tennessee's
protection of the right to privacy, and that this right should not be
diminished or afforded less constitutional protection when the adults
engaging in that private activity are of the same gender.

Campbell v. Sundquist (Tenn. Ct. App. 1996), 926 S.W.2d 250, 262. We hold that
Respondents' sexual conduct which is prohibited by 45-5-505, MCA, is protected by
Article II, Section 10 of Montana's Constitution.
It follows then that since we have concluded that 45-5-505, MCA, constitutes
a governmental intrusion into Respondents' right to privacy, we must next determine

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whether the State has a compelling interest warranting this intrusion. The State
contends
that this compelling interest includes protecting public health by preventing the
spread of
the HIV-related virus and by protecting public morals.
The State's assertion that the statute protects public health by containing the
spread
of AIDS relies on faulty logic and invalid assumptions about the disease. To begin
with,
45-5-505, MCA, was enacted in 1973, almost ten years before the first AIDS case was
detected in Montana. Despite the two-plus decades that the statute has been in
effect,
HIV infection is currently a significant cause of illness and death in this State,
and AIDS
is now the sixth leading cause of death among middle-aged Montanans.
Moreover, the State's rationale assumes that all same-gender sexual conduct
contributes to the spread of the disease. This is grossly inaccurate. AIDS and
HIV, the
virus that causes AIDS, are transmitted through the exchange of HIV-infected semen or
blood, as can occur during vaginal, anal and oral intercourse, or the sharing of
contaminated needles. Sexual contact between women has an extremely low risk of HIV
transmission. On the other hand, heterosexual contact is now the leading mode of HIV
transmission in this country. The Montana Public Health Association (MPHA) reports
that
[a]ccording to the most recent Centers for Disease Control (CDC) data
released at the XI International Conference on AIDS in July, 1996, the
incidence of AIDS (newly reported cases) is growing most rapidly among
heterosexuals. In fact, the proportion of yearly reported AIDS cases
resulting from heterosexual sex has increased steadily over time,
multiplying by more than 5 times between 1985 and 1995. In this same
time period, the risk group designated þmen who have sex with menþ has
accounted for a steadily decreasing proportion of newly reported AIDS
cases, decreasing by more than 20% between 1985 and 1995. In one year,
1993-1994, estimated AIDS incidence among people infected
heterosexually leapt up by 17%. At this alarming rate, heterosexuals lead
both þmen who have sex with menþ and þintravenous drug usersþ as the
risk group with the fastest growing AIDS incidence. In 1995, 65% of those
infected through heterosexual contact were women.

HIV/AIDS Surveillance Report (1995) Vol. 7, No. 2, U.S. Department of Health and
Human Services; Public Health Service; Centers for Disease Control and Prevention;
National Center for HIV, STD, and TB Prevention.
Section 45-5-505, MCA, targets a wide range of behavior unrelated to the spread
of HIV. For example, the term "sexual contact" in the statute encompasses touching,
caressing and kissing, activities that do not spread HIV. Moreover, if two people
are not
infected with HIV, they cannot spread it, yet sexual conduct between the two is
prohibited under the statute. In addition, the statute does not account for "safe"
versions
of the activities, i.e., use of a condom during any "sexual contact" which greatly
reduces
or eliminates the risk of HIV transmission. Thus, the inclusion of behavior not

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associated
with the spread of AIDS and HIV and the exclusion of high-risk behavior among those
other than homosexuals indicate the absence of any clear relationship between the
statute
and any public health goals.
The State contends that criminal sanctions help deter behavior, thereby reducing
the spread of AIDS. The AIDS Prevention Act passed by the Montana Legislature in
1989 and found at Title 50, Chapter 16, Part 10 of the Montana Code, acknowledges
that control of the spread of AIDS is dependent upon education of those infected or
at
risk of infection. Section 50-16-1002(1), MCA. MPHA, an association of 340 public
health professionals throughout Montana, writing as amicus curiae, asserts that
criminal
sanctions are ineffective as a deterrent and are extremely harmful to public
education and
disease prevention efforts. MPHA argues that education and counseling are the most
effective means of changing behavior and that criminal statutes seriously undermine
public health strategies by causing individuals to conceal or distort relevant
information
and by inhibiting effective public education efforts. Accordingly, we conclude that
public
health goals attributed to 45-5-505, MCA, do not support a compelling interest for
the
infringement of Respondents' privacy rights.
The State also argues that it has a compelling interest in protecting public
morals
and that 45-5-505, MCA, advances that interest. The State contends that "societal
notions" of appropriate sexual conduct provide rational grounds for 45-5-505, MCA,
and that this is simply one of many areas of the law where legislative majorities
have
made moral choices contrary to the desire of minorities. In a similar vein, amicus
Montana Citizens for Decency Through Law argues that this statute is deeply rooted in
the values of the citizens of this State and that the legislature's prohibition
against
homosexual sex is a proper exercise of the decision-making power of that branch--as
opposed to the judicial branch--on what is an important political, moral and public
policy
issue. We disagree.
We do not deny the legislature's public policy-making power, nor do we dispute
that public policy and the laws implementing it may often reflect majority will and
prevailing notions of morality. Nevertheless, it is axiomatic that under our system
of
laws, the parameters of the legislature's policy-making power are defined by the
Constitution and that its ability to regulate morals and to enact laws reflecting
moral
choices is not without limits. As the Tennessee Court of Appeals pointed out in
Campbell:
With respect to regulation of morals, the police power should
properly be exercised to protect each individual's right to be free from
interference in defining and pursuing his own morality but not to enforce
a majority morality on persons whose conduct does not harm others. . . .
Indeed, what is considered to be "moral" changes with the times and is

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dependent upon societal background. Spiritual leadership, not the
government, has the responsibility for striving to improve the morality of
individuals.

Campbell, 926 S.W.2d at 265-66 (quoting Commonwealth v. Bonadio (Pa. 1980), 415
A.2d 47, 50).
We agree with the State and with amicus that it is not the function of this or
of
any court to interpret the law on the basis of what may be morally acceptable or
unacceptable to society at any given time. It is not the judiciary's prerogative to
condone
or condemn a particular lifestyle and the behaviors associated therewith upon the
basis
of moral belief.
That said, it does not follow, however, that simply because the legislature has
enacted as
law what may be a moral choice of the majority, the courts are, thereafter, bound to
simply acquiesce. Our Constitution does not protect morality; it does, however,
guarantee
to all persons, whether in the majority or in a minority, those certain basic
freedoms and
rights which are set forth in the Declaration of Rights, not the least of which is
the right
of individual privacy. Regardless that majoritarian morality may be expressed in the
public-policy pronouncements of the legislature, it remains the obligation of the
courts--
and of this Court in particular--to scrupulously support, protect and defend those
rights
and liberties guaranteed to all persons under our Constitution. The oath of office
taken
by every justice and every judge in this state (not to mention every legislator as
well)
demands precisely that. Art. III, Sec. 3, Mont.Const.
As we have already stated, in this State, under Montana's Constitution, the
right
of individual privacy--that is, the right of personal autonomy or the right to be
let alone--
is fundamental. It is, perhaps, one of the most important rights guaranteed to the
citizens
of this State, and its separate textual protection in our Constitution reflects
Montanans'
historical abhorrence and distrust of excessive governmental interference in their
personal
lives. That such interference is because the majority wills it is no less
pernicious.
James Madison decried the potential for a tyranny of the majority, pointing out
that
it was as important in our system of government to guard the minority in our society
against injustice by the majority, as it was to guard society from the oppression of
its
rulers. The Federalist, No. 51, at 351 (James Madison) (Jacob E. Cooke ed., 1961).
Moreover,

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[o]f all tyrannies a tyranny sincerely exercised for the good of its victims
may be the most oppressive. It may be better to live under robber barons
than under omnipotent moral busybodies. The robber baron's cruelty may
sometimes sleep, his cupidity may at some point be satiated; but those who
torment us for our own good will torment us without end for they do so
with the approval of their own conscience.

C.S. Lewis, The Humanitarian Theory of Punishment, in God in the Dock 287, 292
(1970).
The right of consenting adults, regardless of gender, to engage in private, non-
commercial sexual conduct strikes at the very core of Montana's constitutional right
of
individual privacy; and, absent an interest more compelling than a legislative
distaste of
what is perceived to be offensive and immoral sexual practices on the part of
homosexuals, state regulation, much less criminalization, of this most intimate
social
relationship will not withstand constitutional scrutiny. Quite simply, while
legislative
enactments may reflect the will of the majority, and, arguably, may even respond to
perceived societal notions of what is acceptable conduct in a moral sense, there are
certain rights so fundamental that they will not be denied to a minority no matter
how
despised by society. In Montana, the right of privacy is such a right. While
nothing in
this opinion should be construed to countenance nonconsensual sexual activity, sexual
contact with a minor, or any form of sexual conduct for commercial purposes,
Montana's constitutional right of 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.
Having concluded that 45-5-505, MCA, constitutes a governmental intrusion into
Respondents' right to privacy, guaranteed by Article II, Section 10 of Montana's
Constitution, and finding no compelling state interest for such an intrusion, we
hold that
45-5-505, MCA, is unconstitutional as applied to Respondents and other consenting
adults engaging in private, same-gender, non-commercial, sexual conduct, and we
affirm
the decision of the District Court.
Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ WILLIAM E. HUNT, SR.

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/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

/S/ KARLA M. GRAY

Chief Justice J. A. Turnage concurring and dissenting:

I agree with the result of this case declaring 45-5-505, MCA,
unconstitutional.
However, I dissent to the majority's ruling basing unconstitutionality on Article II,
Section 10 of the Montana Constitution.
The majority has unnecessarily and unwisely used privacy as the basis for its
decision. Two provisions of the Montana Code are the focus of the issue in this
case.

Section 45-2-101(20), MCA, provides this definition:
"Deviate sexual relations" means sexual contact or sexual intercourse
between two persons of the same sex[.] [Emphasis added.]

Section 45-5-505, MCA, provides:
Deviate sexual conduct. (1) A person who knowingly engages in
deviate sexual relations or who causes another to engage in deviate sexual
relations commits the offense of deviate sexual conduct.

(2) A person convicted of the offense of deviate sexual conduct shall
be imprisoned in the state prison for any term not to exceed 10 years or be
fined in an amount not to exceed $50,000, or both.

The statutory scheme of the legislature clearly criminalizes sexual acts
between
persons of the same sex and decriminalizes the same sexual conduct engaged in by
persons of opposite sexes. Clearly, this is a denial of the constitutional
guarantee of
equal protection of the law in violation of the Fourteenth Amendment to the United
States
Constitution and Article II, Section 4 of the Montana Constitution.
To be treated equally under the law is a far broader constitutional right,
together
with the right of due process, than any other constitutional guarantee in either the
federal
or state constitution.
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

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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

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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. TURNAGE

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