Montana Revisits The State Sodomy Law [Why Sodomy Laws?]



Montana Sen. Tom Facey is pushing to delete a language about an unenforceable, 40-year-old sodomy ban from from the state code. Although the ban was deemed unconstitutional in 1997 by the state’s Supreme Court, Facey is reintroducing legislation to make sure certain words are taken out of Montana’s Constitution. “It is about dignity. We are saying, ‘We will respect you,’” Facey told The Huffingtonpost.com, referring to the gay community. “It is respect and saying, ‘We won't poke a finger in your eye.’”

The Montana Supreme Court struck down the State's sodomy law and ruled that the law violates the State constitutional right to privacy. Until this ruling, all homosexual relations were labeled deviate sexual conduct, punishable by a $50,000 fine and 10 years in prison. No one had been prosecuted under the law since it was enacted in 1973, but its existence placed gay men and lesbians at risk of prosecution. The high court was not persuaded by the State's argument that the sodomy law was permissible because it prevented HIV infection and preserved public morality, largely because the law was enacted a decade before the first case of AIDS was reported in Montana. 

[From Wikipedia] 
U.S. sodomy laws by the year when they were repealed or struck down.
  Laws repealed or struck down before 1970.
  Laws repealed or struck down from 1970-1989.
  Laws repealed or struck down from 1989-2002.
  Laws struck down by the Supreme Court of the United States in 2003.
Sodomy laws in the United States, which outlawed a variety of sexual acts, were historically universal. While they often targeted sexual acts between persons of the same sex[citation needed], many statutes employed definitions broad enough to outlaw certain sexual acts between persons of different sexes as well, sometimes even acts betweenmarried persons.
Through the 20th century, the gradual liberalization of American sexual mores led to the elimination of sodomy laws in most states. During this time, the Supreme Court upheld the constitutionality of sodomy laws in Bowers v. Hardwick in 1986. However, in 2003 the Supreme Court reversed the decision with Lawrence v. Texas, invalidating sodomy laws in the remaining fourteen states (AlabamaFloridaIdaho,KansasLouisianaMichiganMissouriMississippiNorth CarolinaOklahomaSouth CarolinaTexasUtah, andVirginia).
 In 1778, Thomas Jefferson wrote a law in Virginia which contained a punishment of castration for men who engage in sodomy,however, what was intended by Jefferson as a liberalization of the sodomy laws in Virginia at that time was rejected by the Virginia Legislature, which continued to prescribe death as the maximum penalty for the crime of sodomy in that state.

Prior to 1962, sodomy was a felony in every state, punished by a lengthy term of imprisonment and/or hard labor. In that year, theModel Penal Code (MPC) — developed by the American Law Institute to promote uniformity among the states as they modernized their statutes — struck a compromise that removed consensual sodomy from its criminal code while making it a crime to solicit for sodomy. In 1962 Illinois adopted the recommendations of the Model Penal Code and thus became the first state to remove criminal penalties for consensual sodomy from its criminal code, almost a decade before any other state.  Over the years, many of the states that did not repeal their sodomy laws had enacted legislation reducing the penalty. At the time of the Lawrence decision in 2003, the penalty for violating a sodomy law varied very widely from jurisdiction to jurisdiction among those states retaining their sodomy laws. The harshest penalties were in Idaho, where a person convicted of sodomy could earn a life sentence. Michigan followed, with a maximum penalty of 15 years imprisonment while repeat offenders got life. This was later invalidated in the case of Michigan Organization for Human Rights v. Kelly (1987) 
By 2002, 36 states had repealed their sodomy laws or their courts had overturned them. By the time of the 2003 Supreme Court decision, the laws in most states were no longer enforced or were enforced very selectively. The continued existence of these rarely enforced laws on the statute books, however, was often cited as justification for discrimination against gay men and lesbians.
On June 26, 2003, the U.S. Supreme Court in a 6-3 decision in Lawrence v. Texas struck down the Texas same-sex sodomy law, ruling that this private sexual conduct is protected by the liberty rights implicit in the due process clause of the United States Constitution. This decision invalidated all state sodomy laws insofar as they applied to noncommercial conduct in private between consenting civilians and reversed the Court's 1986 ruling in Bowers v. Hardwick that upheld Georgia's sodomy law.
Before that 2003 ruling, 27 states, the District of Columbia, and 4 territories had repealed their sodomy laws by legislative action, 9 states had had them overturned or invalidated by state court action, 4 states still had same-sex sodomy laws, and 10 states, Puerto Rico, and the U.S. military had laws applying to all regardless of gender. In 2005 Puerto Rico repealed its sodomy law, and in 2006Missouri repealed its law against "homosexual conduct." Three states have yet to repeal such laws: OklahomaKansas[4][5] andTexas.

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