Montana Rep. Bryce Bennett, the state's sole out gay lawmaker, today saw nearly two-thirds of the state House vote in support of taking the state's sodomy law off the books.
That also, however, meant he saw one-third of the body vote to keep the law — despite it having been ruled unconstitutional on state grounds in 1997 and, implicitly, on federal grounds in 2003.
"It feels like we're entering a new day in the state ... and people are ready to move on from this discussion of whether homosexuality should be legal or not," Bennett told BuzzFeed Tuesday shortly after the second reading of a bill to formally repeal the state's sodomy law.
Bennett had successfully filed a motion Monday to pull the bill from committee, which had tabled the repeal measure.
Although Tuesday's second reading resulted in 64 of the body's 100 members voting in support of repealing the law, 36 members voted to keep the sodomy law.
"It's not by accident that for year after year people have decided to keep this unconstitutional language," Bennett said.
More than one-third of the Montana House voted against repealing a law that has been deemed unconstitutional by both the Montana Supreme Court under the state's constitution and the U.S. Supreme Court under the federal constitution.
The repeal effort, thus, is a formality. Yet, opponents of the repeal spoke out in favor of maintaining the law on Tuesday. Of that opposition, Bennett said, "I think it says in a lot of ways that we still have a lot of work to do. This is still a state that struggles with this issue."
In 1997, the Montana Supreme Court held, "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."
If that weren't enough, six years later, the U.S. Supreme Court similarly struck down Texas's sodomy law as violating the U.S. Constitution in Lawrence v. Texas. Justice Anthony Kennedy wrote for the majority of the justices of two men who had been arrested for violating the Texas law, "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause [of the U.S. Constitution] gives them the full right to engage in their conduct without intervention of the government."
The courts' actions do not actually take the laws off the books, but rather render them unconstitutional to be enforced.
Montana did not formally repeal its law after the 1997 state court ruling or after the 2003 Supreme Court ruling. Few states have, in fact, repealed the laws since the 2003 ruling that applied nationwide.
Bennett was surprised it happened now. "I was excited and shocked at the same time. Folks have been trying to pull this language from our statute in Montana since 1991, so this has been a long time coming and I almost couldn't believe when I saw we had 60 votes up there," he said.
Bennett expects the third reading of the bill Wednesday, and, assuming passage is successful, the bill — which already been passed the Senate — will go to Montana Gov. Steve Bullock for his signature.
Already, though, Bennett is looking ahead.
"While it's exciting that we got this point ... we've got a number of steps to take forward before we can tackle other issues to make sure everyone in our state is truly equal," he said.