That Was Us! Taking Down Montana's Deviate Sexual Conduct Law with Rosemary Daszkiewicz

By Rosemary Daszkiewicz

This year marks Legal Voice's 35th anniversary year. The
 That Was Us! series celebrates where we've been and what we've accomplished by creating a patchwork of voices from the people who helped us along the way.

Sometimes, the fates put you in the right place at the right time. In mid-April, 2013, I happened to be in my company’s offices in Columbia Falls, Montana for a few days when I learned of an important update in a case I handled between 1993 and 1997, first as a Legal Voice employee, then later as a Legal Voice volunteer attorney. The case, Gryczan v. State, involved the successful attempt to declare unconstitutional Montana’s Deviate Sexual Conduct law, commonly referred to as a “sodomy law.” The law was not actually a sodomy law in the traditional sense. Instead, enacted in the 1970s, it did not prohibit any specific type of sexual conduct, it simply prohibited any sort of sexual conduct engaged in by two adults of the same gender. It was considered “progressive” in the 1970s because it did not restrict heterosexual couples from performing any consensual sex acts, as traditional sodomy laws had done.

These days, with marriage equality reaching more and more of the citizens of the U.S., it’s hard to imagine a time when such laws were common. And even though there wasn’t a current history of enforcement, every LGBTQ person in Montana knew, in the back of their mind, that such enforcement was possible. Legal Voice partnered with Montana attorney Holly Franz to challenge that law. At the start Holly and I road tripped across Montana, meeting potential plaintiffs and attempting to gain their trust to convince them that it would be worth the risk to put their name on a lawsuit. We were asking them to “come out” in a very public way. Our approach worked, and three brave women and three brave men agreed to be named plaintiffs. Lead plaintiff Linda Gryczan knew she was taking on an especially public role, but she was an activist through and through and was willing to do whatever she could in the fight for justice.

We filed suit in December 1993. Ironically, I was visibly pregnant at two important moments in the case, including during our argument before the Montana Supreme Court on April 11, 1997. (My second daughter, Emma, was due on May 11, though she waited until May 28 to actually arrive.) Our opponents weren’t quite sure what to make of me under the circumstances. Was I a lesbian who had conceived via turkey baster? Was I a straight woman silly enough to align herself with “those kinds of people?” You could hear them praying for my salvation whenever I walked by.

The oral argument was great fun. Each year the Montana Supreme Court arranges for one civil and one criminal case to be argued at the University of Montana Law School in Missoula, rather than at the Court’s chambers in Helena. They chose our case. There wasn’t an empty seat in the room with the number of mostly-supportive law students in attendance, something as close to a media frenzy as I’ll ever participate in—Holly and I were interviewed by the local NPR radio station!—and plenty of good choices for our post-argument merriment. My husband was even able to miss a few days of work to join in the fun. Though I can’t remember the context for the question, at one point I was asked about the circumstances in which you might be able to assume a person had engaged in sexual relations, even if you hadn’t seen the sexual act itself. I decided to answer by mentioning that my present condition certainly made an assumption of sexual activity pretty easy to make. Oddly, the justice did not have a follow up.

We won on July 2, 1997, in a beautifully written decision that played a role in some future legal decisions on gay rights. But because the forces of evil are strong, for many years the Montana legislature refused to remove the laws from the books. Out of spite, pure and simple. Typically, the attorney general presents a single bill each legislative session with updates to laws that are the result of Montana court rulings. Time and again it was not possible to include changes to the sodomy law using that approach.

Finally, with the help of many in the progressive community in Montana, the legislature passed a bill that repealed part of the deviate sexual conduct statue dealing with consenting adults. On April 18, 2013, Governor Bullock signed the bill into law.

The signing occurred in the rotunda of the Montana Capital building. It was another standing-room only event, with crowds filling the main floor and leaning over from the balconies. Many dignitaries were introduced, and special recognition was given to a Republican senator who ultimately agreed to change his position and support repeal. Every potential applause line was greeted with long rounds of applause, happy hoots—the works. The room thundered for minutes after the Governor put ink to paper.

One of the leaders of the repeal effort was our lead plaintiff Linda Gryczan. Linda also played a prominent role in the festivities. I know this because I was able to make a last minute change to my work plans, and to fly to Helena for the signing event. I saw many other familiar faces in the crowd, LGBTQ activists from the ‘90s, Holly Franz and her partner, who remain dear friends, etc. It wasn’t my victory this time around, but I was part of the chain that led to that glorious signing ceremony.

I treasure every moment of working on that case, and the friendships and relationships I developed during those years. It was a team effort from start to finish with many high and low moments to savor. What an experience for an emerging lawyer; I had only been practicing for 11 years when I gave that oral argument. And I cannot believe how lucky I was to play a meaningful role in the efforts to secure justice for the LGBTQ community. It makes writing an annual check to Legal Voice easy to remember, to help it support the work that needs to be done today.


Rosemary Daszkiewicz is a senior director, law with Plum Creek Timber Company. Her responsibilities include ethics and compliance, litigation oversight, and supporting the manufacturing operations and the human resources team. A former Legal Voice employee and long-time volunteer, Rosemary’s proudest non-legal accomplishment is raising two young women who know their way around whatever wave of feminism we’re currently living through.