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 asapplied

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, 

noncommercial 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, noncommercial 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 noncommercial, 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 constitutionallyempowered 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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