Gryczan v. State

96-202

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 (Womenþs Law Center)

For Amici Curiae:

Prof. Larry Elison, Prof. Thomas Huff, Deirdre Runnette, University of

Montana, School of Law, Missoula, Montana (Womenþs 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

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Decided: July 2, 1997

Filed:

__________________________________________

Clerk

Justice 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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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,

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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

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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 þmen who have sex with menþ 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 þmen who have sex with menþ and þintravenous drug usersþ 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

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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

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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,

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[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.

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/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

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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

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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

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