Fourteen years ago the Montana Supreme Court ruled that a state law criminalizing gay sex violates Montana's constitution, yet the Montana Legislature has repeatedly failed to scrub the language, which places homosexuality in the same legal category as bestiality, from the books. This session's effort, sponsored by Sen. Tom Facey, D-Missoula, died in a House committee last month after passage in the Senate.
The legislature's inaction was not, it turns out, another non-priority falling off the too-long to-do list. Rather, it's homophobic lawmakers subtly suggesting that homosexual acts should still be outlawed, the Supreme Court—and equal rights in general—be damned. In fact, at least one lawmaker, Rep. Ken Peterson, R-Billings, an attorney, argues that the archaic law may still apply in certain situations.
Which situations? According to Peterson, chair of the House Judiciary Committee, there are at least two prosecutable offenses—felonies punishable by up to 10 years in prison and a $50,000 fine. One is the "recruitment" of non-gays. "Homosexuals can't go out into the heterosexual community and try to recruit people, or try to enlist them in homosexual acts," Peterson says. He provides an example: "'Here, young man, your hormones are raging. Let's go in this bedroom, and we'll engage in some homosexual acts. You'll find you like it.'" Peterson hasn't actually seen this happen, he says, because "I don't associate with that group of people at all... I've associated with mainstream people all my life."
The other offense, in Peterson's legal opinion, is the public display of homosexuality, since he believes the Supreme Court's decision only applies to private acts behind closed doors. Being gay in public, he says, is a wholly different matter:
"In my mind, if they were engaging in acts in public that could be construed as homosexual, it would violate that statute. It has to be more than affection. It has to be overt homosexual acts of some kind or another... If kissing goes to that extent, yes. If it's more than that, yes."
Fortunately, Peterson's "interpretation" is his own daydream. It will never fly, according to Larry Epstein, vice president of the Montana County Attorneys Association, which is composed of people who prosecute felony crimes across the state. "The statute will not be enforced as written—ever," Epstein says. "We take our marching orders not only from the legislature but from the courts in which we appear."