11 April 2013

Five Flathead legislators vote to repeal deviant sex statute

When a supreme court rules that a law is unconstitutional, that law becomes unenforceable but remains on the books until repealed. Usually, repeal, however grudging, occurs reasonably quickly. But not always. Legislatures sometimes leave the struck down law on the books as a statement that they think the court was wrong.

That’s what Montana’s legislature did for eighteen years after Montana’s supreme court unanimously ruled that a law criminalizing deviant (gay) sex was unconstitutional. The law could not be enforced, but it remained a part of the Montana Code because Republican legislators, without whose votes repeal was impossible, thought the law was a good idea, both for its content and for how effectively it pandered to the religious right. And that was long the official GOP position on the issue:

That commitment to preserving unconstitutionality was quietly removed from the 2012 Montana GOP platform, freeing GOP legislators to vote for repeal without committing heresy. I suspect the removal was in roughly equal parts seeing the light at last and a conversion of convenience. But it was enough to make repealing the statute possible.

In early January, 2013, Sen. Tom Facey (D-Missoula) introduced SB-107 to remove the unconstitutional deviant sex statute from Montana’s body of laws. On 20 February, SB-107 was approved by the senate 38–11. On 10 April the Montana House of Representatives voted 65–34 to approve SB-107. In the final debate in the House, Rep. Duane Ankeny (R-Colstrip) made it clear that not all Republican legislators are homophobic Neanderthals. Governor Bullock has not confirmed that he will sign the bill, but a betting man would not put money on a veto.

All but one (excused) of the Democrats in the legislature voted for SB-107, but not all Republicans. In the House, 26 Republicans voted for the bill, while 34 voted against it, with one excused. In the Senate, 18 Republicans voted Aye, and 11 voted Nay. See Table 2 for a breakdown of GOP votes.

Three Flathead state representatives, Democrat Ed Lieser, and Republicans Steve Lavin and Scott Reichner, and two state senators, Republicans Bruce Tutvedt and Jon Sonju, voted for repeal. The rest of the Flathead delegation remained faithful to the 2010 Montana Republican platform. See Table 1.

The passage of SB-107 is progress, justice too long delayed, and a reminder that hard as it is to change votes, it’s harder still to change hearts and minds.