Gryczan v. State
942 P.2d 112, 283 Mont. 433, 54 State Rptr. 699 (1997)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A state law criminalizing private, consensual, non-commercial sexual conduct between adults of the same sex violates the fundamental right to individual privacy explicitly guaranteed by the Montana Constitution, and cannot be justified by the state's interest in protecting public health or public morals.
Facts:
- Respondents are six homosexual adults (three men and three women) residing in Montana.
- Respondents have engaged in, and intend to continue engaging in, private, consensual sexual conduct with other adults of the same sex.
- This conduct is defined as a felony, "deviate sexual conduct," under Montana statute § 45-5-505, MCA.
- Two Respondents hold or are seeking employment requiring state licenses and fear losing them because their conduct is classified as a felony.
- One Respondent is a mother who fears the statute could be used to limit her relationship with her child.
- Respondents assert they suffer psychological harm and a legitimate fear of prosecution due to the statute's existence.
Procedural Posture:
- Respondents filed a declaratory judgment action in the District Court for the First Judicial District, Lewis and Clark County, challenging the constitutionality of § 45-5-505, MCA.
- The State of Montana filed a motion to dismiss, arguing the Respondents lacked standing and presented no justiciable controversy.
- The District Court denied the State's motion to dismiss.
- Both parties filed cross-motions for summary judgment.
- The District Court granted summary judgment for the Respondents, concluding the statute was unconstitutional as applied and issued a permanent injunction against its enforcement for private, consensual, adult, same-gender conduct.
- The State of Montana (appellant) appealed the District Court's judgment to the Supreme Court of Montana.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does § 45-5-505, MCA, which criminalizes consensual, private, same-gender sexual conduct between adults, violate the right to privacy under Article II, Section 10 of the Montana Constitution?
Opinions:
Majority - Justice Nelson
Yes, § 45-5-505, MCA, violates the right to privacy. Montana's Constitution provides an explicit and fundamental right to individual privacy that is broader than the federal constitution's. Because this is a fundamental right, any state infringement must withstand strict scrutiny, requiring the state to demonstrate a compelling interest. Consensual, non-commercial adult sexual activity falls squarely within the zone of privacy protected by Article II, Section 10. The State’s asserted interests—protecting public health from HIV/AIDS and upholding public morality—are not compelling. The statute is a poor tool for public health as it is both overinclusive and underinclusive and ignores effective measures like education, while the protection of majoritarian morality cannot justify the infringement of a fundamental constitutional right.
Concurring - Chief Justice Turnage
Yes, the statute is unconstitutional, but the court should have based its decision on equal protection grounds rather than privacy. The law explicitly criminalizes sexual acts between persons of the same sex while permitting the same acts between persons of opposite sexes, which is a clear violation of the Equal Protection Clauses of the U.S. and Montana Constitutions. There is no rational basis for this differential treatment. Relying on the right to privacy is unwise as it creates an overly broad precedent that could invite challenges to other necessary legislative enactments, such as the prohibition on assisted suicide.
Analysis:
This decision established that Montana's explicit constitutional right to privacy provides greater protection for individual autonomy in intimate matters than the federal constitution did at the time under Bowers v. Hardwick. By applying strict scrutiny, the court set a high bar for state interference in the private lives of its citizens, particularly regarding sexual conduct. The ruling effectively decriminalized same-sex intimacy in Montana years before the U.S. Supreme Court's landmark decision in Lawrence v. Texas, highlighting the crucial role state constitutions can play in expanding civil liberties beyond federal minimums.
