Date: Wed, 9 Jul 1997 13:57:24 -0700 (PDT)
From: Franklin Weston <faw@pwa.acusd.edu>
No. 96-202
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
LINDA M. GRYCZAN, ANNE K. GEHR,
STACEY HAUGLAND, DONALD HOWARD,
DOYLE F. FORISTER, and WILLIAM C.SUMMERS,
Plaintiffs and Respondents,
v.
STATE OF MONTANA,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph P. Mazurek, Attorney General, Clay R. Smith,
Solicitor, Helena,
Montana
For Respondents:
Holly J. Franz, Gough, Shanahan, Johnson & Waterman,
Helena,
Montana; Rosemary Daszkiewicz, Cairncross & Hempelmann,
Seattle,
Washington (Women s Law Center)
For Amici Curiae:
Prof. Larry Elison, Prof. Thomas Huff, Deirdre Runnette,
University of
Montana, School of Law, Missoula, Montana (Women s Law
Caucus);
Joan Jonkel, Missoula, Montana (Montana Public Health Association);
J. Stuart
Bradshaw, Stevensville, Montana (Montana Citizens for
Decency Through
Law); Mark S. Connell, Connell & Beers, Missoula, Montana;
Suzanne
B. Goldberg, Ruth E. Harlow, New York, New York (Lambda
Legal Defense
and Education Fund, et al.); Matthew Coles, New York, New
York
(American Civil Liberties Union)
Heard:April 11, 1997
Submitted: April 17, 1997
Decided: July 2, 1997 Filed:
__________________________________________
ClerkJustice James C. Nelson delivered the
Opinion of the Court.
The State of Montana appeals a Judgment of the District Court for the
First
Judicial District, Lewis and Clark County, declaring 45-5-505, MCA,
unconstitutional
as a violation of the privacy provision of the Montana Constitution when
applied to
consensual, private, same-gender sexual conduct between adults. We affirm.
The State raises the following issues:
1. Whether Respondents have standing to maintain an as-applied
challenge to the
constitutionality of 45-5-505, MCA.
2. Whether 45-5-505, MCA, infringes on Respondents' right to
privacy under
Article II, Section 10 of the Montana Constitution to the extent it
prohibits consensual,
private, same-gender sexual conduct between adults.
3. Whether 45-5-505, MCA, violates Article II, Section 4 of the
Montana
Constitution by infringing on Respondents' dignity as human beings,
discriminating
against them on the basis of sex, or denying them equal protection of the
laws to the
extent it prohibits consensual, private, same-gender sexual conduct
between adults.
Having affirmed the trial court as to issues 1 and 2, we decline to
address issue 3.
Background
On December 6, 1993, Respondents filed a declaratory judgment action,
pursuant
to Title 27, chapter 8 of the Montana Code, challenging the
constitutionality of that
portion of Montana's deviate-sexual-conduct statute, 45-5-505, MCA, that
criminalizes
consensual sex between adults of the same gender. Respondents contend
that 45-5-505,
MCA, is unconstitutional under Article II, Sections 4 and 10 of the
Montana Constitution
and that it violates the due process clause of the Fourteenth Amendment to
the United
States Constitution.
Respondents are three men and three women residing in Montana who are
homosexuals. They assert that they have in the past and intend in the
future to engage
in conduct that violates 45-5-505, MCA. This statute provides:
Deviate Sexual Conduct. (1) A person who knowingly engages in
deviate sexual relations or who causes another to engage in deviate
sexual
relations commits the offense of deviate sexual conduct.
(2) A person convicted of the offense of deviate sexual conduct
shall
be imprisoned in the state prison for any term not to exceed 10 years
or be
fined an amount not to exceed $50,000, or both.
(3) The fact that a person seeks testing or receives treatment
for the
HIV-related virus or another sexually transmitted disease may not be
used
as a basis for a prosecution under this section and is not admissible
in
evidence in a prosecution under this section.
The phrase "deviate sexual relations" is defined at 45-2-101(20), MCA, as
"sexual
contact or sexual intercourse between two persons of the same sex or any
form of sexual
intercourse with an animal." "Sexual contact" and "sexual intercourse"
are defined as:
"Sexual contact" means any touching of the sexual or other intimate
parts
of the person of another for the purpose of arousing or gratifying
the sexual
desire of either party.
Section 45-2-101(65), MCA.
"Sexual intercourse" means penetration of the vulva, anus, or mouth
of one
person by the penis of another person, penetration of the vulva or
anus of
one person by any body member of another person, or penetration of
the
vulva or anus of one person by any foreign instrument or object
manipulated by another person for the purpose of arousing or
gratifying the
sexual desire of either party. Any penetration, however slight, is
sufficient.
Section 45-2-101(66), MCA.
Section 45-5-505, MCA, was enacted in 1973 as part of the criminal
law revision.
Prior to 1973, Montana law had prohibited "crimes against nature" with
persons or
animals. Section 45-5-505, MCA, was amended in 1981 to add a maximum fine
of
$50,000 as part of the penalty provision. In 1991, a subsection providing
a greater
penalty when the conduct was nonconsensual was deleted and a subsection
prohibiting the
use of information regarding the testing of or the treatment for the
HIV-related virus as
evidence in a prosecution was added. Efforts to repeal the statute were
rejected in 1991,
1993, and 1995.
On January 18, 1994, the State moved to dismiss the declaratory
judgment action
contending that Respondents lacked standing to challenge the statute, and
that there is no
justiciable controversy. The District Court denied the State's motion on
June 28, 1994.
The parties filed cross-motions for summary judgment in September 1995.
The District
Court subsequently granted Respondents' motion concluding that a
justiciable controversy
existed and that Respondents had standing to challenge the statute because
they feared
prosecution and were harmed by the very existence of the statute. The
court also
concluded that 45-5-505, MCA, infringed on Respondents' right to privacy
under
Article II, Section 10 of Montana's Constitution and that the State failed
to demonstrate
a compelling interest justifying the infringement of that right. The
State appeals.
Standard of Review
Our standard of review in appeals from summary judgment rulings is de
novo.
Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907
P.2d 154,
156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785.
When we
review a district court's grant of summary judgment, we apply the same
evaluation as the
district court based on Rule 56, M.R.Civ.P. Bruner v. Yellowstone County
(1995), 272
Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry:
The movant must demonstrate that no genuine issues of material fact
exist.
Once this has been accomplished, the burden then shifts to the
non-moving
party to prove, by more than mere denial and speculation, that a
genuine
issue does exist. Having determined that genuine issues of fact do
not
exist, the court must then determine whether the moving party is
entitled to
judgment as a matter of law. We review the legal determinations made
by
a district court as to whether the court erred.
Bruner, 900 P.2d at 903 (citations omitted).
Issue 1.
Whether Respondents have standing to maintain an as-applied challenge
to the constitutionality of 45-5-505, MCA.
The State maintains that without a concrete factual context,
Respondents'
challenge presents a political dispute properly decided in a legislative
and not in a
judicial forum. The State contends that to establish a justiciable
controversy under
Article VII, Section 4(1) of the Montana Constitution, Respondents are
required to show
an "injury in fact" and that no such injury exists here because there is
no evidence of a
credible threat of prosecution under the statute since no one has been
prosecuted for
engaging in consensual, adult, private, same-gender sexual conduct since
the statute was
enacted. The State also contends that Respondents do not have standing to
challenge the
constitutionality of 45-5-505, MCA, because they have never been arrested
or
prosecuted for violating the statute. The State maintains that the mere
apprehension of
prosecution or the fact that a person may feel denigrated by the law is
not sufficient for
standing purposes and where an as-applied challenge is at stake, as in
this case, resolution
of the constitutional issue should await an actual instance of the statute
being applied.
Respondents brought this action under the Uniform Declaratory
Judgments Act (the
Act) found at Title 27, Chapter 8, of the Montana Code. Respondents argue
that this
Court has held that a party raising a "bona fide constitutional issue" can
seek relief from
the courts through a declaratory judgment action. Stuart v. Dept. of
Social & Rehab.
Serv. (1991), 247 Mont. 433, 438-39, 807 P.2d 710, 713 (quoting Mitchell
v. Town of
West Yellowstone (1988), 235 Mont. 104, 109-10, 765 P.2d 745, 748).
Furthermore,
Respondents point out, the Act itself provides that it is remedial and
that it is to be
liberally construed and administered to permit courts "to afford relief
from uncertainty
and insecurity with respect to rights, status, and other legal relations .
. . ." Section 27-
8-102, MCA.
Respondents argue that, although they have never been arrested or
prosecuted
under the statute, they have been injured and continue to be injured by
the mere existence
of the statute. They contend that the damage to their self-esteem and
dignity and the fear
that they will be prosecuted or will lose their livelihood or custody of
their children create
an emotional injury that gives them standing to challenge the statute.
For example, two
Respondents are employed or are seeking employment in positions requiring
state
licenses. Because they engage in conduct classified as a felony, they
fear they could lose
their professional licenses. One Respondent is the mother of a five-year
old boy. She
fears that the statute could be used to limit her relationship with her
son.
To address this issue we look first to whether the case presents a
justiciable
controversy and then to whether Respondents have standing to bring this
constitutional
challenge. The test of whether a justiciable controversy exists is: (1)
that the parties
have existing and genuine, as distinguished from theoretical, rights or
interests; (2) the
controversy must be one upon which the judgment of the court may
effectively operate,
as distinguished from a debate or argument invoking a purely political,
administrative,
philosophical or academic conclusion; and (3) the controversy must be one
the judicial
determination of which will have the effect of a final judgment in law or
decree in equity
upon the rights, status or legal relationships of one or more of the real
parties in interest,
or lacking these qualities, be of such overriding public moment as to
constitute the legal
equivalent of all of them. Lee v. State (1981), 195 Mont. 1, 6, 635 P.2d
1282, 1284-85
(citing Matter of Secret Grand Jury Inquiry (1976), 170 Mont. 354, 357,
553 P.2d 987,
990). This Court concluded in Lee that the plaintiff in that case fit all
three of these
criteria because he was directly affected by the operation of the statute
at issue.
So too, Respondents in the instant case are directly affected by
45-5-505, MCA,
and the controversy at issue fulfills each of these three criteria.
First, Respondents have
a genuine interest in the outcome of this case. Second, the controversy
is one upon
which the judgment of the court may effectively operate. The District
Court issued a
permanent injunction forbidding the State to enforce the statute against
Respondents or
any other Montanans who engage in homosexual activity if that activity is
consensual,
private and engaged in by adults. Third, the District Court's
determination has the effect
of a final judgment in law upon Respondents' rights.
The question of standing is whether the litigant is entitled to have
the court decide
the merits of the dispute or of particular issues. Helena Parents v.
Lewis & Clark Cty.
(1996), 277 Mont. 367, 371, 922 P.2d 1140, 1142 (citing Warth v. Seldin
(1975), 422
U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343). Furthermore, when
standing is
placed at issue in a case, the question is whether the person whose
standing is challenged
is a proper party to request an adjudication of a particular issue and not
whether the issue
itself is justiciable. Helena Parents, 922 P.2d at 1142 (citing Flast v.
Cohen (1968), 392
U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947).
We have previously stated that the following criteria must be
satisfied to establish
standing:
(1) The complaining party must clearly allege past, present or
threatened injury to a property or civil right; and (2) the alleged
injury must
be distinguishable from the injury to the public generally, but the
injury
need not be exclusive to the complaining party.
Helena Parents, 922 P.2d at 1142-43 (citing Sanders v. Yellowstone County
(1996), 276
Mont. 116, 119, 915 P.2d 196, 198; Stewart v. Bd. of Cty. Com'rs of Big
Horn Cty.
(1977), 175 Mont. 197, 201, 573 P.2d 184, 186).
The State argues that since the statute has never been enforced
against consenting
adults, there is no "threatened injury" to Respondents. The State relies
on Doe v. Duling
(4th Cir. 1986), 782 F.2d 1202, for its contention that prosecution under
a criminal
statute must be imminent before standing to challenge the statute is
established. Duling
involved a challenge by two unmarried adults to Virginia statutes
prohibiting fornication
and cohabitation by unmarried persons. Both plaintiffs alleged they had
engaged in
sexual intercourse with unmarried members of the opposite sex and one
plaintiff alleged
she had cohabited with an unmarried man. Neither plaintiff had been
prosecuted or
threatened with prosecution under the statutes, but they alleged that they
were fearful of
prosecution and that that fear had caused them to refrain from engaging in
the prohibited
activities. Duling, 782 F.2d at 1204.
The United States District Court for the Eastern District of Virginia
found that
plaintiffs had standing to maintain the action and ruled in their favor on
the merits. The
Fourth Circuit Court of Appeals reversed, holding that plaintiffs did not
have standing.
The Court of Appeals stated that an individual challenging the validity of
a criminal
statute must show a threat of prosecution both real and immediate to
present a case or
controversy and that the plaintiffs in Duling faced only the most
theoretical threat of
prosecution. Duling, 782 F.2d at 1206.
We conclude that the State's reliance on Duling is misplaced. The
challenged
statutes in Duling had not been enforced for more than 100 years and there
was no
evidence that they were anything more than historical artifacts. While 100
years of
nonenforcement may make a law so moribund that any fear of prosecution is
imaginary,
the United States Supreme Court has held that even 40 years of
nonenforcement does not
deprive a court of jurisdiction to determine a law's constitutionality.
See, e.g., Epperson
v. Arkansas (1968), 393 U.S. 97, 101-02, 89 S.Ct. 266, 269, 21 L.Ed.2d
228. The
challenged statute in the case before us is only 24 years old and has been
amended as
recently as 1991. This, and other prior amendments, make it clear that
the Montana
Legislature not only contemplates prosecution, but also considers the
possibility realistic
enough to require the addition of a subsection preventing the use of
evidence of testing
or treatment for the HIV-related virus or other sexually-transmitted
diseases as a basis for
prosecution under the statute. Moreover, the legislature has decided
three times in the
last seven years not to repeal the statute.
The State's position that Respondents lack standing because they have
not been
prosecuted under the statute is at odds with prior decisions of this Court
as well as prior
decisions of the United States Supreme Court. In Lee v. State (1981), 195
Mont. 1, 635
P.2d 1282, we did not require the plaintiff to suffer arrest to challenge
a criminal statute.
We held in Lee, that plaintiff had standing to challenge the 55-mph speed
limit even
though he had not been arrested for speeding, because otherwise, acts of
the legislature
that affect large segments of the public would be insulated from judicial
attack. Lee, 635
P.2d at 1285.
The State argues that Lee is distinguishable from the case before us
because Lee
involved a facial challenge to a statute, while the case before us
involves an as-applied
challenge to a statute. In addition, the State points out that the
challenged statute in Lee
had been enforced for some time before it was challenged, while the
statute here has not
been enforced against consenting adults. We conclude that Lee is not
distinguishable
from the instant case simply because the statute at issue here has not
been enforced
against persons such as Respondents. Here, Respondents are precisely the
individuals the
statute is designed to impact. Moreover, there is nothing to prevent a
county attorney
from enforcing the statute against consenting adults. "It is well
established that a decision
as to whether or not to prosecute and what charge to bring against an
individual is
entirely within the discretion of the county attorney." Helena Parents,
922 P.2d at 1145
(citing State v. Lemmon (1984), 214 Mont. 121, 126, 692 P.2d 455, 457).
Similarly, the United States Supreme Court has concluded that a
plaintiff need not
suffer arrest to challenge a criminal statute. See Epperson, 393 U.S. at
100-102, 89
S.Ct. at 268-69, 21 L.Ed.2d 228 (high school science teacher challenging
the
constitutionality of a 1928 criminal law prohibiting the teaching of
evolution found to
have standing without any record of prosecutions under the law because the
teacher was
directly affected by the law); Doe v. Bolton (1973), 410 U.S. 179, 93 S.Ct
739, 35
L.Ed.2d 201 (doctors challenging certain provisions of Georgia's abortion
laws found to
have standing without arrest because they were the ones against whom the
criminal
statutes directly operated); Babbitt v. United Farm Workers (1979), 442
U.S. 289, 99
S.Ct. 2301, 60 L.Ed.2d 895 (a union and its members had standing to
challenge a statute
imposing criminal penalties for certain types of union publicity despite
the state's
argument that the criminal penalties had never been and might never be
applied); Virginia
v. American Booksellers Assn. (1988), 484 U.S. 383, 108 S.Ct. 636, 98
L.Ed.2d 782
(booksellers had standing to bring a pre-enforcement challenge to a
statute making it
unlawful to knowingly display sexually-explicit material in a manner
accessible to
juveniles because the law was aimed directly at the booksellers).
The existence of a criminal law aimed specifically at one group of
citizens, the
enforcement of which has not been disavowed by the state, creates a fear
of prosecution
sufficient to confer standing unless there are other circumstances which
make that fear
"imaginary" or "wholly speculative." Babbitt, 442 U.S. at 302, 99 S.Ct.
at 2310-11,
60 L.Ed.2d 895. Moreover, when fear of criminal prosecution under an
allegedly unconstitutional statute is not imaginary or wholly speculative
a plaintiff need not "first expose
himself to actual arrest or prosecution to be entitled to challenge [the]
statute." [Citation omitted.] . . . [T]he criminal penalty provision
applies in terms to "[a]ny person . . . who violates any provision" of the
Act.
Moreover, the State has not disavowed any intention of invoking the
criminal penalty provision against [plaintiffs]. Appellees are thus
not
without some reason in fearing prosecution. . . . In our view, the
positions
of the parties are sufficiently adverse with respect to the . . .
provision .
. . to present a case or controversy within the jurisdiction of the
District
Court.
Babbitt, 442 U.S. at 302, 99 S.Ct. at 2310-11, 60 L.Ed.2d 895.
Additionally, at least
one circuit court has held that nothing short of an express unconditional
statement that the
law will not be enforced will bar plaintiffs from challenging a law. See,
e.g., United
Food & Com. Workers Intrn. v. IBP, Inc. (8th Cir. 1988), 857 F.2d 422,
427-28. Here,
the State has made no such disavowal.
In addition to alleging a past, present or threatened injury,
Respondents must
establish that the alleged injury is distinguishable from any injury to
the general public,
but the injury need not be exclusive to Respondents. Helena Parents, 922
P.2d at 1142-
43. Here, the District Court concluded that Respondents are affected
psychologically by
the statute in a more acute fashion than persons who do not engage in
same-gender sexual
conduct. Thus, the general public does not suffer any injury under the
statute because
the statute does not criminalize sexual conduct between heterosexuals.
The statute only
criminalizes sexual conduct between homosexuals.
The psychological injuries suffered by Respondents stem from the
repression of
their desires for sexual expression and from deprivation of their personal
autonomy. In
addition, there is evidence to show that there is a correlation between
homosexual sodomy
laws and homophobic violence. The National Institute for Justice has
concluded that gays
are the most frequent victims of hate violence today. Thus, homosexuals
in Montana live
not only with the psychological impact of the fear of prosecution under
the statute but the
fear that violence may be directed at them because they are seen as
criminals.
The State, on the other hand, contends that any psychological harm
the statute may
inflict upon Respondents is not enough to establish standing. The State
relies on Allen
v. Wright (1984), 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556, for this
contention.
In Allen,
the parents of several black children attending public school challenged
the failure of the
Internal Revenue Service to deny tax-exempt status to private schools
allegedly
discriminating on the basis of race. Since these parents had not
attempted and had no
desire to attempt to enroll their children in the schools, the United
States Supreme Court
held that the parents did not have standing as they had not alleged a
personal injury
traceable to the schools' allegedly unlawful conduct. The case before us
on appeal is
distinguishable from Allen in that, rather than relying on a general
stigmatic injury,
Respondents have presented evidence of specific psychological effects
caused by the
statute. Moreover, unlike the parents who brought suit in Allen,
Respondents are those
persons who are personally denied equal treatment.
Because the legislature does not regard the statute as moribund and
because
enforcement has not been foresworn by the Attorney General, we agree that
Respondents
suffer a legitimate and realistic fear of criminal prosecution along with
other
psychological harms. Respondents are precisely the individuals against
whom the statute
is intended to operate. This is sufficient to give Respondents standing
to challenge the
constitutionality of the statute. Moreover, to deny Respondents standing
would
effectively immunize the statute from constitutional review.
Accordingly, we hold that a justiciable controversy exists and that
Respondents
have standing to challenge the constitutionality of 45-5-505, MCA.
Issue 2.
Whether 45-5-505, MCA, infringes on Respondents' right to privacy
under Article II, Section 10 of the Montana Constitution to the
extent
it prohibits consensual, private, same-gender sexual conduct between
adults.
In its February 16, 1996 Order on Motions for Summary Judgment, the
District
Court concluded that 45-5-505, MCA, violates Respondents' right to
privacy guaranteed
by the Montana Constitution and that that invasion of privacy is not
justified by any
compelling state interest. The court recognized that since Respondents did
not present a
facial attack upon the statute, it could not declare the statute
unconstitutional as to any
and all sets of circumstances that might arise. However, the court issued
a permanent
injunction forbidding the State to enforce the statute against Respondents
or any other
people in the State of Montana who engage in consensual, adult, private,
same-gender
sexual conduct. In addressing this issue we determine, first, whether
Respondents' sexual
conduct prohibited by 45-5-505, MCA, is protected by Montana's
constitutional right
of privacy and then, if it is protected, whether the State has
demonstrated a compelling
interest for infringing that right. We begin our discussion with a brief
overview of the
right of privacy under the federal constitution.
The federal constitution does not explicitly grant citizens the
right to privacy. That
right has been inferred, however, from other provisions of the
constitution and is used
particularly in search and seizure contexts. Justice Louis Brandeis, in
his dissenting
opinion in Olmstead v. United States first argued that the Fourth
Amendment protected
an individual's right of privacy from invasions by the government.
The makers of our Constitution . . . conferred, as against the
Government,
the right to be let alone--the most comprehensive of rights and the
right
most valued by civilized men. To protect that right, every
unjustifiable
intrusion by the Government upon the privacy of the individual,
whatever
the means employed, must be deemed a violation of the Fourth
Amendment.
Olmstead v. United States (1928), 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72
L.Ed.2d
944, overruled by Katz v. United States (1967), 389 U.S. 347, 88 S.Ct.
507, 19 L.Ed.2d
576.
In his concurrence to the majority's opinion in Katz, Justice Harlan
summarized
the rule that has emerged from Katz and from prior decisions regarding
privacy in the
context of a search as requiring, "first that a person have exhibited an
actual (subjective)
expectation of privacy and, second, that the expectation be one that
society is prepared
to recognize as 'reasonable.'" Katz, 389 U.S. at 361, 88 S.Ct. at 516,
19 L.Ed.2d 576.
This two-prong test was later adopted by the United States Supreme Court
in its decision
in Smith v. Maryland (1979), 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220.
In addition to a right of privacy underlying the Fourth Amendment, an
aspect of
privacy has been tied to an individual's liberty interest. In Griswold v.
Connecticut
(1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, the United States
Supreme Court
held that laws forbidding the use of contraceptive devices violated the
right of marital
privacy which the Court determined is within the penumbra of specific
guarantees of the
Bill of Rights. Six of the justices deciding Griswold recognized the
right of privacy to
be a fundamental right protected by the federal constitution.
While the right of privacy enunciated in Griswold has been recognized
by the
United States Supreme Court to protect certain personal decisions, other
personal choices
have been excluded. In Bowers v. Hardwick (1986), 478 U.S. 186, 106 S.Ct.
2841, 92
L.Ed.2d 140, after being charged with violating a Georgia statute
criminalizing sodomy
by committing that act with another adult male in the privacy of his home,
Hardwick
brought suit to challenge the constitutionality of the statute. The
United States Supreme
Court determined that the federal constitution does not confer a
fundamental right upon
homosexuals to engage in sodomy, thus the statute was held to be
constitutional.
However, Justice Blackmun dissenting in Bowers, articulated that Bowers
was not about
the right to engage in homosexual sodomy, but rather it was about "the
right to be let
alone" as enunciated by Justice Brandeis' dissent in Olmstead. Bowers,
478 U.S. at 199,
106 S.Ct. at 2848, 92 L.Ed.2d 140.
Regardless of whether Bowers was correctly decided, we have long held
that
Montana's Constitution affords citizens broader protection of their right
to privacy than
does the federal constitution. See State v. Siegal (Mont. 1997), 934 P.2d
176, 183, 54
St.Rep. 158, 163-64. Unlike the federal constitution, Montana's
Constitution explicitly
grants to all Montana citizens the right to individual privacy. Article
II, Section 10 of
the Montana Constitution provides:
Right of privacy. The right of individual privacy is essential
to the
well-being of a free society and shall not be infringed without the
showing
of a compelling state interest.
Since the right to privacy is explicit in the Declaration of Rights in
Montana's
Constitution, it is a fundamental right and any legislation regulating the
exercise of a
fundamental right must be reviewed under a strict-scrutiny analysis. To
withstand a
strict-scrutiny analysis, the legislation must be justified by a
compelling state interest and
must be narrowly tailored to effectuate only that compelling interest.
Siegal, 934 P.2d
at 184 (citing State v. Pastos (1994), 269 Mont. 43, 47, 887 P.2d 199,
202).
The District Court held that 45-5-505, MCA, violated Respondents'
right to
privacy under the Montana Constitution. Relying on the two-prong test set
forth in Katz
and adopted by this Court in Hastetter v. Behan (1982), 196 Mont 280, 639
P.2d 510,
the District Court concluded that Respondents' same-gender sexual
activities are covered
by Montana's right to privacy. The court found that Respondents have an
expectation
of privacy in the activities proscribed by the statute since "a person's
decision as to sexual
matters is probably one of the most private areas of a person's life."
Furthermore, the
court determined that while many Montanans do not approve of homosexual
activity, that
is not to say that society is unwilling to recognize as reasonable an
expectation of privacy
as to consensual, adult, private, same-gender sexual conduct. Because the
State failed
to demonstrate a compelling interest justifying the infringement of
Respondents' right to
privacy, the court granted summary judgment to Respondents.
The State, while acknowledging the existence of an individual's
right to privacy
under Article II, Section 10, contends that it does not immunize adult
same-gender sexual
conduct from state regulation. The State maintains that the United States
Supreme Court
already resolved this issue in Bowers and that no right to privacy for
this conduct exists.
The State also contends that the appropriate test for determining whether
a fundamental
right to privacy exists is not the two-part test set out in Katz regarding
informational
privacy, but rather, a test regarding personal-autonomy privacy used by
the United States
Supreme Court in Bowers and derived from Palko v. Connecticut (1937), 302
U.S. 319,
58 S.Ct. 149, 82 L.Ed.2d 288, overruled on other grounds by Benton v.
Maryland
(1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. This test may be
articulated as
whether the statute in question "violate[s] those 'fundamental principles
of liberty and
justice which lie at the base of all our civil and political
institutions.'" Palko, 302 U.S.
at 328, 58 S.Ct. at 153, 82 L.Ed.2d 288.
We agree with the District Court that under traditional Katz
analysis, Respondents'
same-gender, consensual sexual conduct is protected by Montana's
constitutional right of
privacy. It cannot seriously be argued that Respondents do not have a
subjective or
actual expectation of privacy in their sexual activities. With few
exceptions not at issue
here, all adults regardless of gender, fully and properly expect that
their consensual
sexual activities will not be subject to the prying eyes of others or to
governmental
snooping or regulation. Quite simply, consenting adults expect that
neither the state nor
their neighbors will be co-habitants of their bedrooms. Moreover, while
society may not
approve of the sexual practices of homosexuals, or, for that matter,
sodomy, oral
intercourse or other sexual conduct between husband and wife or between
other
heterosexuals, that is not to say that society is unwilling to recognize
that all adults,
regardless of gender or marital state, at least have a reasonable
expectation that their
sexual activities will remain personal and private. Accordingly, we
disagree with the
State that the Katz test is inappropriate. It is, and under that test
Respondents' right to
privacy in their consensual, non-commercial sexual conduct is protected
under Article II,
Section 10 of Montana's Constitution.
As to Palko, this Court applied a Palko-derived test in Town of Ennis
v. Stewart
(1991), 247 Mont. 355, 807 P.2d 179, along with the Katz test. In Ennis,
several
property owners refused to hook up to the city water system arguing that
they had a
privacy right to use the wells in their homes. We stated that under the
federal
constitution, the right to privacy has been extended only to those rights
which are
fundamental or implicit in the concept of ordered liberty. Ennis, 807
P.2d at 182. We
held in Ennis that the type of interest being infringed was not the kind
sufficient for
defendants to invoke the special protections of their privacy right. We
stated that because
the right being asserted was not of constitutional magnitude the Town need
not show a
compelling interest to satisfy its ends, rather it need only demonstrate
that the ordinance
bears a rational relationship to the achievement of a legitimate state
interest. Ennis, 807
P.2d at 182.
While hooking up to a private well may not be the type of interest
sufficient to
invoke the special protections of a privacy right, adults engaging in
consensual, non-
commercial sexual activities in private is sufficient. More importantly,
however,
regardless of whether same-gender, consensual sexual conduct is accorded
federal
constitutional, personal-autonomy privacy protection as a fundamental
right or as a right
implicit in the concept of ordered liberty, Montana's Constitution, as we
have already
pointed out, explicitly protects individual or personal-autonomy privacy
as a fundamental
right by its placement in the Declaration of Rights. In fact, it is hard
to imagine any
activity that adults would consider more fundamental, more private and,
thus, more
deserving of protection from governmental interference than
non-commercial, consensual
adult sexual activity.
Accordingly, whether we apply the Katz test or the Palko test, we
conclude that
Respondents' right of privacy under Article II, Section 10 of Montana's
Constitution
includes the right to engage in consensual, non-commercial, private,
same-gender sexual
conduct with other adults free of governmental interference or regulation.
Finally, the State points out that the delegates to the 1972 Montana
Constitutional
Convention defeated a proposal to include a provision in the Declaration
of Rights stating
that "[p]rivate sexual acts between consenting adults do not constitute a
crime." The
State contends that this reflects an unwillingness to protect this type of
conduct, even
under the privacy clause. We do not agree. The verbatim transcript of the
1972
Constitutional Convention is bereft of any discussion as to why the
proposal was defeated.
While the State can speculate that this reflects an unwillingness to
protect this type of
conduct, one can also speculate that the delegates believed it was already
protected under
the privacy clause.
In summary, and regardless of the sort of legal test used, we agree
with the
statement of the Tennessee Court of Appeals when faced with a similar
question of the
extent of an individual's right to privacy under the Tennessee
Constitution:
We think it is consistent with this State's Constitution and
constitutional
jurisprudence to hold that an adult's right to engage in consensual
and
noncommercial sexual activities in the privacy of that adult's home
is a
matter of intimate personal concern which is at the heart of
Tennessee's
protection of the right to privacy, and that this right should not be
diminished or afforded less constitutional protection when the adults
engaging in that private activity are of the same gender.
Campbell v. Sundquist (Tenn. Ct. App. 1996), 926 S.W.2d 250, 262. We hold
that
Respondents' sexual conduct which is prohibited by 45-5-505, MCA, is
protected by
Article II, Section 10 of Montana's Constitution.
It follows then that since we have concluded that 45-5-505, MCA,
constitutes
a governmental intrusion into Respondents' right to privacy, we must next
determine
whether the State has a compelling interest warranting this intrusion.
The State contends
that this compelling interest includes protecting public health by
preventing the spread of
the HIV-related virus and by protecting public morals.
The State's assertion that the statute protects public health by
containing the spread
of AIDS relies on faulty logic and invalid assumptions about the disease.
To begin with,
45-5-505, MCA, was enacted in 1973, almost ten years before the first
AIDS case was
detected in Montana. Despite the two-plus decades that the statute has
been in effect,
HIV infection is currently a significant cause of illness and death in
this State, and AIDS
is now the sixth leading cause of death among middle-aged Montanans.
Moreover, the State's rationale assumes that all same-gender sexual
conduct
contributes to the spread of the disease. This is grossly inaccurate.
AIDS and HIV, the
virus that causes AIDS, are transmitted through the exchange of
HIV-infected semen or
blood, as can occur during vaginal, anal and oral intercourse, or the
sharing of
contaminated needles. Sexual contact between women has an extremely low
risk of HIV
transmission. On the other hand, heterosexual contact is now the leading
mode of HIV
transmission in this country. The Montana Public Health Association
(MPHA) reports
that
[a]ccording to the most recent Centers for Disease Control (CDC) data
released at the XI International Conference on AIDS in July, 1996,
the
incidence of AIDS (newly reported cases) is growing most rapidly
among
heterosexuals. In fact, the proportion of yearly reported AIDS cases
resulting from heterosexual sex has increased steadily over time,
multiplying by more than 5 times between 1985 and 1995. In this same
time period, the risk group designated men who have sex with men
has
accounted for a steadily decreasing proportion of newly reported AIDS
cases, decreasing by more than 20% between 1985 and 1995. In one
year,
1993-1994, estimated AIDS incidence among people infected
heterosexually leapt up by 17%. At this alarming rate, heterosexuals
lead
both men who have sex with men and intravenous drug users as the
risk group with the fastest growing AIDS incidence. In 1995, 65% of
those
infected through heterosexual contact were women.
HIV/AIDS Surveillance Report (1995) Vol. 7, No. 2, U.S. Department of
Health and
Human Services; Public Health Service; Centers for Disease Control and
Prevention;
National Center for HIV, STD, and TB Prevention.
Section 45-5-505, MCA, targets a wide range of behavior unrelated to
the spread
of HIV. For example, the term "sexual contact" in the statute encompasses
touching,
caressing and kissing, activities that do not spread HIV. Moreover, if
two people are not
infected with HIV, they cannot spread it, yet sexual conduct between the
two is
prohibited under the statute. In addition, the statute does not account
for "safe" versions
of the activities, i.e., use of a condom during any "sexual contact" which
greatly reduces
or eliminates the risk of HIV transmission. Thus, the inclusion of
behavior not associated
with the spread of AIDS and HIV and the exclusion of high-risk behavior
among those
other than homosexuals indicate the absence of any clear relationship
between the statute
and any public health goals.
The State contends that criminal sanctions help deter behavior,
thereby reducing
the spread of AIDS. The AIDS Prevention Act passed by the Montana
Legislature in
1989 and found at Title 50, Chapter 16, Part 10 of the Montana Code,
acknowledges
that control of the spread of AIDS is dependent upon education of those
infected or at
risk of infection. Section 50-16-1002(1), MCA. MPHA, an association of
340 public
health professionals throughout Montana, writing as amicus curiae, asserts
that criminal
sanctions are ineffective as a deterrent and are extremely harmful to
public education and
disease prevention efforts. MPHA argues that education and counseling are
the most
effective means of changing behavior and that criminal statutes seriously
undermine
public health strategies by causing individuals to conceal or distort
relevant information
and by inhibiting effective public education efforts. Accordingly, we
conclude that public
health goals attributed to 45-5-505, MCA, do not support a compelling
interest for the
infringement of Respondents' privacy rights.
The State also argues that it has a compelling interest in protecting
public morals
and that 45-5-505, MCA, advances that interest. The State contends that
"societal
notions" of appropriate sexual conduct provide rational grounds for
45-5-505, MCA,
and that this is simply one of many areas of the law where legislative
majorities have
made moral choices contrary to the desire of minorities. In a similar
vein, amicus
Montana Citizens for Decency Through Law argues that this statute is
deeply rooted in
the values of the citizens of this State and that the legislature's
prohibition against
homosexual sex is a proper exercise of the decision-making power of that
branch--as
opposed to the judicial branch--on what is an important political, moral
and public policy
issue. We disagree.
We do not deny the legislature's public policy-making power, nor do
we dispute
that public policy and the laws implementing it may often reflect majority
will and
prevailing notions of morality. Nevertheless, it is axiomatic that under
our system of
laws, the parameters of the legislature's policy-making power are defined
by the
Constitution and that its ability to regulate morals and to enact laws
reflecting moral
choices is not without limits. As the Tennessee Court of Appeals pointed
out in Campbell:
With respect to regulation of morals, the police power should
properly be exercised to protect each individual's right to be free
from
interference in defining and pursuing his own morality but not to
enforce
a majority morality on persons whose conduct does not harm others. .
. .
Indeed, what is considered to be "moral" changes with the times and
is
dependent upon societal background. Spiritual leadership, not the
government, has the responsibility for striving to improve the
morality of
individuals.
Campbell, 926 S.W.2d at 265-66 (quoting Commonwealth v. Bonadio (Pa.
1980), 415
A.2d 47, 50).
We agree with the State and with amicus that it is not the function
of this or of
any court to interpret the law on the basis of what may be morally
acceptable or
unacceptable to society at any given time. It is not the judiciary's
prerogative to condone
or condemn a particular lifestyle and the behaviors associated therewith
upon the basis
of moral belief.
That said, it does not follow, however, that simply because the
legislature has enacted as
law what may be a moral choice of the majority, the courts are,
thereafter, bound to
simply acquiesce. Our Constitution does not protect morality; it does,
however, guarantee
to all persons, whether in the majority or in a minority, those certain
basic freedoms and
rights which are set forth in the Declaration of Rights, not the least of
which is the right
of individual privacy. Regardless that majoritarian morality may be
expressed in the
public-policy pronouncements of the legislature, it remains the
obligation of the courts--
and of this Court in particular--to scrupulously support, protect and
defend those rights
and liberties guaranteed to all persons under our Constitution. The oath
of office taken
by every justice and every judge in this state (not to mention every
legislator as well)
demands precisely that. Art. III, Sec. 3, Mont.Const.
As we have already stated, in this State, under Montana's
Constitution, the right
of individual privacy--that is, the right of personal autonomy or the
right to be let alone--
is fundamental. It is, perhaps, one of the most important rights
guaranteed to the citizens
of this State, and its separate textual protection in our Constitution
reflects Montanans'
historical abhorrence and distrust of excessive governmental interference
in their personal
lives. That such interference is because the majority wills it is no less
pernicious.
James Madison decried the potential for a tyranny of the majority,
pointing out that
it was as important in our system of government to guard the minority in
our society
against injustice by the majority, as it was to guard society from the
oppression of its
rulers. The Federalist, No. 51, at 351 (James Madison) (Jacob E. Cooke
ed., 1961).
Moreover,
[o]f all tyrannies a tyranny sincerely exercised for the good of its
victims
may be the most oppressive. It may be better to live under robber
barons
than under omnipotent moral busybodies. The robber baron's cruelty
may
sometimes sleep, his cupidity may at some point be satiated; but
those who
torment us for our own good will torment us without end for they do
so
with the approval of their own conscience.
C.S. Lewis, The Humanitarian Theory of Punishment, in God in the Dock 287,
292
(1970).
The right of consenting adults, regardless of gender, to engage in
private, non-
commercial sexual conduct strikes at the very core of Montana's
constitutional right of
individual privacy; and, absent an interest more compelling than a
legislative distaste of
what is perceived to be offensive and immoral sexual practices on the part
of
homosexuals, state regulation, much less criminalization, of this most
intimate social
relationship will not withstand constitutional scrutiny. Quite simply,
while legislative
enactments may reflect the will of the majority, and, arguably, may even
respond to
perceived societal notions of what is acceptable conduct in a moral sense,
there are
certain rights so fundamental that they will not be denied to a minority
no matter how
despised by society. In Montana, the right of privacy is such a right.
While nothing in
this opinion should be construed to countenance nonconsensual sexual
activity, sexual
contact with a minor, or any form of sexual conduct for commercial
purposes,
Montana's constitutional right of privacy--this right of personal autonomy
and right to be
let alone--includes the right of consenting adults, regardless of gender,
to engage in non-
commercial, private, sexual relations free of governmental interference,
intrusion and
condemnation.
Having concluded that 45-5-505, MCA, constitutes a governmental
intrusion into
Respondents' right to privacy, guaranteed by Article II, Section 10 of
Montana's
Constitution, and finding no compelling state interest for such an
intrusion, we hold that
45-5-505, MCA, is unconstitutional as applied to Respondents and other
consenting
adults engaging in private, same-gender, non-commercial, sexual conduct,
and we affirm
the decision of the District Court.
Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ KARLA M. GRAY
Chief Justice J. A. Turnage concurring and dissenting:
I agree with the result of this case declaring 45-5-505, MCA,
unconstitutional.
However, I dissent to the majority's ruling basing unconstitutionality on
Article II,
Section 10 of the Montana Constitution.
The majority has unnecessarily and unwisely used privacy as the basis
for its
decision. Two provisions of the Montana Code are the focus of the issue in
this case.
Section 45-2-101(20), MCA, provides this definition:
"Deviate sexual relations" means sexual contact or sexual
intercourse
between two persons of the same sex[.] [Emphasis added.]
Section 45-5-505, MCA, provides:
Deviate sexual conduct. (1) A person who knowingly engages in
deviate sexual relations or who causes another to engage in deviate
sexual
relations commits the offense of deviate sexual conduct.
(2) A person convicted of the offense of deviate sexual conduct
shall
be imprisoned in the state prison for any term not to exceed 10 years
or be
fined in an amount not to exceed $50,000, or both.
The statutory scheme of the legislature clearly criminalizes sexual
acts between
persons of the same sex and decriminalizes the same sexual conduct engaged
in by
persons of opposite sexes. Clearly, this is a denial of the
constitutional guarantee of
equal protection of the law in violation of the Fourteenth Amendment to
the United States
Constitution and Article II, Section 4 of the Montana Constitution.
To be treated equally under the law is a far broader constitutional
right, together
with the right of due process, than any other constitutional guarantee in
either the federal
or state constitution.
I agree with the majority that 45-5-505, MCA, is unconstitutional as
applied to
noncommercial homosexual activity engaged in by adults consensually and in
private.
However, unlike the majority, I would base that determination on violation
of
constitutional guarantees of equal protection under the Fourteenth
Amendment to the
United States Constitution and Article II, Section 4 of the Montana
Constitution.
The Equal Protection Clause prohibits any classification scheme which
fails a
rational basis analysis. Under rational basis analysis, the Court's
inquiry must be
whether there exists a legitimate government objective which bears some
identifiable
rational relationship to the classification made. See Burlington Northern
R. Co. v. Ford
(1992), 504 U.S. 648, 651, 112 S.Ct. 2184, 2186, 119 L.Ed.2d 432, 438;
Cottrill v.
Cottrill Sodding Service (1987), 229 Mont. 40, 43, 744 P.2d 895, 897.
As is discussed at some length in the majority opinion, 45-5-505,
MCA, bears
no rational relationship to either of its suggested government purposes,
as an expression
of societal mores or to protect public health. As an expression of
societal mores, the
statute is both overbroad and underinclusive, forbidding consensual
intimate touching
between homosexuals without any evidence that such conduct was
historically forbidden,
yet permitting heterosexuals to engage in conduct long deemed
inappropriate by some
segments of society, such as anal sex, sex outside of marriage, and
non-procreative sex.
Furthermore, the State has not demonstrated, nor can it demonstrate, that
the purpose of
45-5-505, MCA, was or is to protect public health. Not one of the three
public health
experts who testified in this case suggested that 45-5-505, MCA, offered
any benefit
to the public health.
In Com. v. Wasson (Kentucky 1992), 842 S.W.2d 487, the Supreme Court
of
Kentucky struck down a statute similar to 45-5-505, MCA, which defined as
a
misdemeanor criminal offense "deviate sexual intercourse with another
person of the same
sex." In doing so, the court reasoned:
In the final analysis we can attribute no legislative purpose to
this
statute except to single out homosexuals for different treatment for
indulging their sexual preference by engaging in the same activity
heterosexuals are now at liberty to perform. By 1974 [when the
Kentucky
statute was enacted] there had already been a sea change in societal
values
insofar as attaching criminal penalties to extramarital sex. The
question is
whether a society that no longer criminalizes adultery, fornication,
or
deviate sexual intercourse between heterosexuals, has a rational
basis to
single out homosexual acts for different treatment. Is there a
rational basis
for declaring this one type of sexual immorality so destructive of
family
values as to merit criminal punishment whereas other acts of sexual
immorality which were likewise forbidden by the same religious and
traditional heritage of Western civilization are now decriminalized?
If there
is a rational basis for different treatment it has yet to be
demonstrated in
this case. We need not sympathize, agree with, or even understand
the
sexual preference of homosexuals in order to recognize their right to
equal
treatment before the bar of criminal justice.
Wasson, 842 S.W.2d at 501.
No rational basis has been demonstrated for the classification
created under 45-5-
505, MCA. I conclude that the statute is violative of the Equal
Protection Clauses of the
Montana and the United States Constitutions as applied to persons of the
same sex
engaging in noncommercial, consensual, private sexual conduct, and is
therefore
unconstitutional. I therefore dissent and specially concur that
45-5-505, MCA, is
unconstitutional as a denial of equal protection.
So much for the unnecessary reliance by the majority on Article II,
Section 10 of
the Montana Constitution and now as to the basis for the majority opinion
being unwise.
The opinion of the majority, I submit, is an open-door invitation to
challenges of
legislative enactments by the people of Montana, through their
constitutionally-
empowered legislature, prohibiting conduct that they believe to be
destructive to
Montana's society as a whole. There are many such statutes on the books
that not only
have a rational basis but are very important to the people of Montana.
I submit that this Court should not be surprised if one of the first
challenges under
the theory espoused by the majority in this case will be to 45-5-105,
MCA, which
provides severe criminal sanctions for a person who purposely aids or
solicits another to
commit suicide. The majority opinion cites with approval the District
Court's statement
that "a person's decision as to sexual matters is probably one of the most
private areas
of a person's life." This statement is correct. However, there is
something in the lives
of people equally private and more important--the right to life or death.
I respectfully concur as to the result and dissent as to the
reasoning used by the
majority.
/S/ J. A. TURNAGE