We support the clear will of the people of Montana expressed by legislation to keep homosexual acts illegal.
The position is certainly troubling, but given the party’s strong emphasis on the Constitution, it’s also somewhat ironic. For instance, the platform uses some form of the word “constitutional” at least 10 times and even argues that constitutionality should be decided by the states. “We agree with Thomas Jefferson and James Madison, who stated that the U.S. Supreme Court does not have the sole authority to judge the constitutionality of federal laws. We hold with these men that the States not only have the right, but also the duty to nullify unconstitutional laws in order to protect their citizens,” the platform states.
But the Montana Supreme Court struck down the State’s sodomy law in 1997 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.”
In 2003, the U.S. Supreme Court found in Lawrence v. Texas that Texas’ “Homosexual Conduct” law — a measure outlawing oral and anal sex — unconstitutional. The Court ruled that the Texas statute “making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.” “The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons,” the Court ruled in a 6-3 ruling.
Montana voters banned marriage for same-sex couples in 2004.