On June 14, Missoula's Hilton Garden Inn is decked out with American flags and red, white and blue balloons that rise up alongside Denny Rehberg and Rick Hill banners. A woman wears a black shirt adorned with a glittering elephant. Men look sharp in Wranglers, blazers and Tony Lama boots. There's an excitement inside the warm foyer during the initial hours of the Montana GOP convention. Local, state and federal lawmakers are mingling with the party's rank and file on the first day of a three-day event featuring notables such as former U.S. Speaker of the House Newt Gingrich; Rep. Rehberg, who's running to unseat Democratic incumbent Sen. Jon Tester in November; and gubernatorial hopeful Rick Hill.
Montana Republicans meet every two years at their platform convention, forging and strengthening bonds, making speeches, smiling, shaking hands, posing for pictures and planning for the future. They also edit and amend their state platform, which details the party's stances on issues such as commerce and agriculture and serves as a guidebook for lawmaking. Inside Salon A at the Hilton on June 14, about a dozen committee members debated the party's views on crime, tackling thorny issues like sexual assault, marijuana and homosexuality.
The Montana Supreme Court declared the state's felony "deviate sexual conduct law" unconstitutional in 1997. For years afterward, the Montana GOP's platform called to re-criminalize "homosexual acts" while Republican legislators blocked efforts to remove the law from the books. But in recent years, the party has taken heat for the way it's dealt with homosexuality. Former state House Judiciary Chairman Ken Peterson, of Billings, garnered national headlines last year after telling the Independent he supported keeping the deviate sexual conduct law on the books because, despite the Montana Supreme Court's decision, he believed it was still enforceable. Homosexuals, Peterson said at the time, couldn't be allowed to "go out into the heterosexual community and try to recruit people or try to enlist them in homosexual acts."
During the June 14 GOP crime committee meeting, H. Elwood English, a 66-year-old attorney from Billings, was the first to say the homosexual acts plank should go. "Mister Chairman, as everybody knows, I think, the Supreme Court found those laws unconstitutional some years ago," English said. "Every year, I have to put up with some friend of mine saying, 'You know, the Republican Party still believes they can rule peoples' lives like that.'"
Vice Chair of the Ravalli County Republican Central Committee Lilya McAlister expressed similar feelings; people in Ravalli County ridicule her for the platform, she said. "This denotes that we can go knock on somebody's bedroom door and arrest them." Later, McAlister told the Independent that she testified before the committee because, though she's a Christian, her brother was "born that way."
Only one person spoke before the committee to oppose removing the plank, saying he found nothing wrong with advocating a change of law on such an important moral issue.
Kalispell state lawmaker and Crime Committee Chairman Keith Regier said that striking the language, rather than changing it, seemed best. "We don't want to say, 'Homosexual acts, they're okay.'"
After a brief consultation, the committee voted unanimously to remove the plank. The discussion amongst its members was similar to one that's occurring with increasing frequency lately in courthouses, legislatures and living rooms across the country, as judges, lawmakers, voters and others try to reconcile long-standing legal and moral prohibitions against homosexuality with a burgeoning gay rights movement that contends gay people are due equal protections under the law. It can be an emotional debate at times, as well as one that involves fundamental questions of morality, law and privacy. Perhaps nowhere is it more diverse than among members of Montana's Republican Party.
The infamous crime
In 1777, Thomas Jefferson helped pen a criminal code for the Commonwealth of Virginia. It categorized homosexual sex among a broader category of prosecutable acts: "Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least."
Virginia legislators opted to stick instead with a penalty they had inherited from British law. In 1779, "buggery" in Virginia became a felony punishable by death.
The country's founders crafted laws that reflected Judeo-Christian values. New arrivals to North America thought masturbation sinful. Gay sex was considered an abomination. Before 1961, all 50 states crafted various forms of deviate sexual conduct laws. Some forbade oral sex, others anal sex. In Idaho, Utah and Montana, among other states, those laws also applied to heterosexual sex. In 1865, Montana's First Territorial Legislature called sodomy "the infamous crime against nature" and made it punishable by a mandatory five-year jail term. Fifty years later, the Montana Supreme Court decided, in State v. Guerin, that the law also applied to oral sex.
In 1955, the American Law Institute, composed of judges, lawyers and law professors, advised in the "Model Penal code" that legislators not impose "criminal penalties for consensual sexual relations conducted in private." When 100 delegates convened in 1971 and 1972 to rewrite the Montana Constitution, a proposal to legalize all private consensual sex failed in a 69-16 vote. A 1973 overhaul of the state's criminal code produced the "deviate sexual conduct" statute, defining deviate sexual relations as "sexual contact or sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal."
In 1989, Linda Gryczan, of Helena, found it incomprehensible that she could have been prosecuted for being intimate with her female partner. Though the deviate sexual conduct law wasn't enforced, "what they were doing was using it to justify discrimination on the job and in housing and in public accommodations," Gryczan says. Drawing attention to discrimination didn't work, she says, because it required admitting felonious behavior.
In 1991, 1993 and 1995, Gryczan and others lobbied the Montana legislature to repeal the law. Each time, they shared their stories of being otherwise law-abiding citizens who paid taxes and shopped peaceably alongside their straight neighbors at the same grocery stores. Each time, their efforts failed. In fact, they galvanized opposition from conservative groups, who lobbied the legislature to fend off attempts to decriminalize gay sex. During the 1995 session, some state lawmakers proposed requiring individuals convicted of deviate sexual conduct to register as sex offenders for life.