On June 14, Missoula's Hilton Garden Inn is decked out with American flags and red, white and blue balloons that rise up alongside Denny Rehberg and Rick Hill banners. A woman wears a black shirt adorned with a glittering elephant. Men look sharp in Wranglers, blazers and Tony Lama boots. There's an excitement inside the warm foyer during the initial hours of the Montana GOP convention. Local, state and federal lawmakers are mingling with the party's rank and file on the first day of a three-day event featuring notables such as former U.S. Speaker of the House Newt Gingrich; Rep. Rehberg, who's running to unseat Democratic incumbent Sen. Jon Tester in November; and gubernatorial hopeful Rick Hill.
Montana Republicans meet every two years at their platform convention, forging and strengthening bonds, making speeches, smiling, shaking hands, posing for pictures and planning for the future. They also edit and amend their state platform, which details the party's stances on issues such as commerce and agriculture and serves as a guidebook for lawmaking. Inside Salon A at the Hilton on June 14, about a dozen committee members debated the party's views on crime, tackling thorny issues like sexual assault, marijuana and homosexuality.
The Montana Supreme Court declared the state's felony "deviate sexual conduct law" unconstitutional in 1997. For years afterward, the Montana GOP's platform called to re-criminalize "homosexual acts" while Republican legislators blocked efforts to remove the law from the books. But in recent years, the party has taken heat for the way it's dealt with homosexuality. Former state House Judiciary Chairman Ken Peterson, of Billings, garnered national headlines last year after telling the Independent he supported keeping the deviate sexual conduct law on the books because, despite the Montana Supreme Court's decision, he believed it was still enforceable. Homosexuals, Peterson said at the time, couldn't be allowed to "go out into the heterosexual community and try to recruit people or try to enlist them in homosexual acts."
- Photo by Chad Harder
- Montana Capitol
During the June 14 GOP crime committee meeting, H. Elwood English, a 66-year-old attorney from Billings, was the first to say the homosexual acts plank should go. "Mister Chairman, as everybody knows, I think, the Supreme Court found those laws unconstitutional some years ago," English said. "Every year, I have to put up with some friend of mine saying, 'You know, the Republican Party still believes they can rule peoples' lives like that.'"
Vice Chair of the Ravalli County Republican Central Committee Lilya McAlister expressed similar feelings; people in Ravalli County ridicule her for the platform, she said. "This denotes that we can go knock on somebody's bedroom door and arrest them." Later, McAlister told the Independent that she testified before the committee because, though she's a Christian, her brother was "born that way."
Only one person spoke before the committee to oppose removing the plank, saying he found nothing wrong with advocating a change of law on such an important moral issue.
Kalispell state lawmaker and Crime Committee Chairman Keith Regier said that striking the language, rather than changing it, seemed best. "We don't want to say, 'Homosexual acts, they're okay.'"
After a brief consultation, the committee voted unanimously to remove the plank. The discussion amongst its members was similar to one that's occurring with increasing frequency lately in courthouses, legislatures and living rooms across the country, as judges, lawmakers, voters and others try to reconcile long-standing legal and moral prohibitions against homosexuality with a burgeoning gay rights movement that contends gay people are due equal protections under the law. It can be an emotional debate at times, as well as one that involves fundamental questions of morality, law and privacy. Perhaps nowhere is it more diverse than among members of Montana's Republican Party.
The infamous crime
In 1777, Thomas Jefferson helped pen a criminal code for the Commonwealth of Virginia. It categorized homosexual sex among a broader category of prosecutable acts: "Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least."
Virginia legislators opted to stick instead with a penalty they had inherited from British law. In 1779, "buggery" in Virginia became a felony punishable by death.
- Photo by Chad Harder
- Openly gay state lawmakers Diane Sands and Bryce Bennett
The country's founders crafted laws that reflected Judeo-Christian values. New arrivals to North America thought masturbation sinful. Gay sex was considered an abomination. Before 1961, all 50 states crafted various forms of deviate sexual conduct laws. Some forbade oral sex, others anal sex. In Idaho, Utah and Montana, among other states, those laws also applied to heterosexual sex. In 1865, Montana's First Territorial Legislature called sodomy "the infamous crime against nature" and made it punishable by a mandatory five-year jail term. Fifty years later, the Montana Supreme Court decided, in State v. Guerin, that the law also applied to oral sex.
In 1955, the American Law Institute, composed of judges, lawyers and law professors, advised in the "Model Penal code" that legislators not impose "criminal penalties for consensual sexual relations conducted in private." When 100 delegates convened in 1971 and 1972 to rewrite the Montana Constitution, a proposal to legalize all private consensual sex failed in a 69-16 vote. A 1973 overhaul of the state's criminal code produced the "deviate sexual conduct" statute, defining deviate sexual relations as "sexual contact or sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal."
In 1989, Linda Gryczan, of Helena, found it incomprehensible that she could have been prosecuted for being intimate with her female partner. Though the deviate sexual conduct law wasn't enforced, "what they were doing was using it to justify discrimination on the job and in housing and in public accommodations," Gryczan says. Drawing attention to discrimination didn't work, she says, because it required admitting felonious behavior.
In 1991, 1993 and 1995, Gryczan and others lobbied the Montana legislature to repeal the law. Each time, they shared their stories of being otherwise law-abiding citizens who paid taxes and shopped peaceably alongside their straight neighbors at the same grocery stores. Each time, their efforts failed. In fact, they galvanized opposition from conservative groups, who lobbied the legislature to fend off attempts to decriminalize gay sex. During the 1995 session, some state lawmakers proposed requiring individuals convicted of deviate sexual conduct to register as sex offenders for life.
It wasn't just Montana Republicans who were dead set against gay rights. Gryczan remembers the day an elected official called her "slime" at a public meeting. "This was by a Democrat. We had to first work with the Democrats, who didn't want to touch us."
The impasse prompted Gryzcan and five other gay and lesbian Montanans to file a suit in 1993 arguing that the deviate sexual conduct law violated their constitutional rights to privacy and dignity. The state argued that the statute reflected "a legitimate exercise of legislative authority to vindicate societal views concerning appropriate forms of sexual activity."
The Montana Supreme Court found otherwise. In 1997, Justice James C. Nelson wrote the majority opinion, explaining that Montana's constitutional right to privacy ensured adults could engage in all types of consensual sex behind closed doors. "It is hard to imagine," Nelson wrote, "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."
The decision was a turning point in the fight for gay rights in Montana. "A lot of us were holding our shoulders just a little bit higher," Gryczan says.
- Photo by Chad Harder
- Kalispell State Sen. Verdell Jackson
Since then, gays and their allies have worked during successive legislative sessions to persuade lawmakers to remove the law from the books. Republicans have refused. Today it lingers, a powerful reminder that gays are still not yet recognized as equal under Montana law.
"Unfortunately, a lot of folks thought, 'Well, because this law has changed, then it's illegal to discriminate,'" Gryczan says. "The reality is, it's still perfectly legal to discriminate."
Kalispell state Sen. Verdell Jackson knows that God is real. He feels him. "When I pray for some people, I feel the healing take place," Jackson says. "Once you experience that, you're a hundred-percent sure that God exists."
Jackson, a former educator, testified for the first time about homosexuality at the capitol, in Helena, in 1999. It was his first year as a freshman representative and one year after the Montana Supreme Court declared the state's deviate sexual conduct law unconstitutional. Jackson cited scripture that condemns homosexuality. After his testimony, opinion columnists and citizens called Jackson a bigot and a homophobe. There were threats, he says; afraid to worry his wife, he didn't let her read the letters. "It got very nasty," he recalls.
Jackson is 71 now. When he's termed out of the legislature in 2015, he'll have served 16 years, eight in the House and eight in the Senate. When it comes to fending off attempts to further gay rights, he's among the most outspoken Republican lawmakers. Like Gryczan, he's a regular at legislative debates about homosexuality.
Jackson agrees that people have a right to privacy, but he doesn't want to sanction what he sees as immoral behavior, and he worries that gay people, if given a chance, will try to convert his children and grandchildren. Leaving the deviate sexual conduct law on the books ensures there's a way to punish proselytizing homosexuals, he says. "If all of this is repealed," Jackson told the House Judiciary Committee in 2011, "the gay rights community can teach this in school, because it's perfectly alright."
During the same hearing, Rep. Bob Wagner of Harrison was questioning Larry Epstein of The Montana County Attorneys Association on the rationale for removing the language. The proposed bill, Wagner said, "strikes sexual conduct, sexual intercourse, between two persons of the same sex. But it doesn't strike any form of sexual intercourse with animals. And you talked about the difficulty of enforcing the law in a situation like that, between two adults. I would ask, how would you enforce the law between a consenting animal or a non-consenting animal—how would you determine that?"
"I've never had that case," Epstein said. "Bestiality is what you're talking about."
Once again, the House Judiciary Committee tabled legislation that would have removed the deviate sexual conduct law from Montana code. Only one Republican, Rep. Liz Bangerter of Helena, voted to strike the language. Rep. Diane Sands, a Democrat from Missoula and the first openly gay legislator to serve in the Montana Legislature, subsequently tried to pry the bill out of committee but fell short with 51 of the needed 60 votes.
- Photo by Steele Williams
- State GOP convention delegate H. Elwood English
In the upcoming session, Jackson says, he'll stand firm against attempts to remove the language—unless prohibitions against homosexual proselytizing are put in place. He still takes heat for his stand on homosexuality, he says, but not as intensely as that first time. "Maybe it's because people know me now," he says. "They know what to expect."
'It's so offensive'
H. Elwood English remembers the first time he realized he knew someone who was gay: his best friend from Park County High School, in Livingston. In 1973, the friend outed himself to English and everyone else at their 10-year class reunion. "It was quite a shock," English says. "If I hadn't already been moderate on that issue, I came to be a moderate that night."
English went on to run former Senator Conrad Burns's campaign in 1987 and 1988. He also served as the state Republican Party secretary in the mid-1980s. He caught the "political bug" when he was 7, he says, and helped campaign for Dwight D. Eisenhower.
On the second day of the GOP convention in Missoula, English wears a "Hill-Sonju 2012" sticker on the right lapel of his blazer, just above a button that portrays a massive pachyderm squishing a small donkey, the logo for this year's GOP convention. English says he spoke up first in the crime committee about removing the GOP's homosexual acts plank because he feels the government, especially Republicans, has no business policing sexuality. "The Republican Party is the party of freedom," he says, "not the party of making rules about how people run their businesses or how they run their personal lives. ... Religious moral values are so personal, the government shouldn't be deciding those for us."
Instead, English says, government ought to focus on national security and the economy. "Those issues have kept me a Republican even as the Republican Party has drifted into being so controlling in the social issues. Most of us Republicans believe that Democrats are dangerous economically for Montana."
By Republican standards, English is a radical when it comes to social issues. He also supports gay marriage. "Marriage is either a holy sacrament or it's a civil action," he says. "If it's a civil action, it's got to be due process and equal protection of the laws. Americans who want to marry should have the right to do that."
At the convention, the Montana GOP reaffirmed its stance that marriage is solely a heterosexual union. High-profile state Republicans such as Rehberg, Hill and Tim Fox, who's running for attorney general, have all said they believe marriage should be off-limits to gays. Even so, English says the crime committee's unanimous vote to remove the homosexual acts plank is progress. "For the people on that committee to say, 'Yeah, it's a good thing to get rid of that,' when I don't think their personal views have changed," he says, "is an evolution about what government should be doing and shouldn't be doing."
English thinks there are a lot of other Republicans like him; focused on the economy, they'd prefer to steer clear of regulating sexuality altogether. "Many Republicans just consider this silliness," he says.
Former state Sen. John Brueggeman from Polson goes further; he's angry about it. It's hard to call the language in Montana law and the state party platform "anything but draconian," Brueggeman says. "It's so offensive on its face, it's just shocking that it would actually be embodied in any statement by any group."
In 2010, after the party again called to re-criminalize gay sex, Brueggeman said he'd carry a bill calling for the removal of the state's deviate sexual conduct code—an unprecedented move for a Republican legislator in Montana. "After what had happened with the last GOP convention," he explains, "it was even more important to make a serious statement as an elected Republican that this is not what we stand for."
But Brueggeman didn't have a chance to carry the legislation. He resigned at the end of November 2010, roughly a month before the legislative session. He said work responsibilities made it too difficult to serve.
Brueggeman, who is 33, is part of a growing group of youthful Republicans who seem to have no qualms about homosexuality. "The older generations aren't as comfortable talking about or dealing with the gay element of society, the LGBT element of society, and the issues surrounding that," he says. "I think what you see with my generation, and the Gen Xs and the Gen Ys and the coming generations, is, we don't care."
- Photo by Steele Williams
- State GOP Crime Committee Chair Keith Regier
According to a poll conducted by CNN and market research company ORC International in May of this year, 54 percent of those asked supported same-sex marriage; 73 percent of those polled between the ages of 18 and 34 said they favored marriage equality.
The GOP will lose ground if it keeps resisting gay rights legislation, Brueggeman says. "Continued adherence to policies or positions that tend to exclude or limit the rights of people in the LGBT community isn't going to work in the future."
Some notable Republicans have come out in favor of gay rights lately. Earlier this month, Paul E. Singer, a 67-year-old billionaire hedge fund manager from New York, said he was creating a new Super PAC specifically to fund Republican candidates who support gay marriage. The idea behind the American Unity PAC, Singer told The New York Times, is to encourage Republican congressional candidates "'who could be on the verge of support' or are 'harboring and hiding their views.'"
Singer is a player in the national Republican Party. According to The Times, he raised $5 million during one fundraiser last month for Mitt Romney. Singer also has a gay son who wed his partner in 2004. Former Vice President Dick Cheney and his wife Lynne, meanwhile, announced last week that they were "delighted" that their daughter, Mary Cheney, was able to wed her longtime partner, Heather Poe, in a ceremony June 22 in Washington, D.C.
According to the same CNN/ORC International poll, 60 percent of 1,009 survey respondents from across the nation said they had a close friend or family member who is gay. That's up from 49 percent in 2010, which could mean one of two things: there are now more gay people, or homosexuals are increasingly coming out of the closet.
If the latter is true, it's at least in part the fruition of a long-standing civil rights initiative. At the 1978 Gay Freedom Parade in San Francisco, for example, gay rights leader Harvey Milk told a crowd of more than 250,000 people that, in order to make gains, gays and lesbians needed to stop hiding. "We will not win our rights by staying quietly in our closets," Milk said. "We are coming out to fight the lies, the myths, the distortions. We are coming out to tell the truths about gays, for I am tired of the conspiracy of silence. So I'm going to talk about it. And I want you to talk about it. You must come out. Come out to your parents, your relatives."
In Montana, on June 16, the state GOP crime committee presented its changes and amendments to a Republican voting body composed of delegates from across the state. The larger body must endorse committee changes before they're enshrined in the GOP platform.
English was nervous before the vote, unsure how his peers would respond to the committee's efforts to strike the homosexual acts language. But when standing Crime Committee Chair Cleve Loney, a Great Falls representative in the Montana Legislature, addressed the convention on that warm Saturday morning, he didn't detail the deliberations that drove the crime committee to remove the homosexual acts plank. But for Loney briefly alluding to the fact that the GOP's stance on marriage is addressed elsewhere in the platform, there was no discussion whatsoever about homosexual acts before the convention adopted the change.
English now worries that in a rush to approve the platform, the delegates weren't aware that the deviate acts language was removed. Despite his nerves, English says, he would have liked to have had a more substantive examination of where the GOP now stands on homosexuality. "I would have preferred to have the discussion, myself, and get it over with."
There seems to be a sense now in the state GOP that such a conversation has been postponed, like a due bill on a payment plan. English, for example, points out that while the homosexual acts plank is gone, some of his fellow party members aren't necessarily committed to abstaining from sexual regulation. "A blank space doesn't bind them at all," he says.