The Montana Supreme Court decision aside, we're also 10 years removed from the U.S. Supreme Court decision in Lawrence vs. Texas that made anti-sodomy laws unconstitutional and same-sex sex legal in every U.S. state and territory, and still 13 other states have anti-sodomy laws on the books. That number should come down to 12, as a court on Wednesday denied Ken Cuccinelli, Virginia's attorney general and potential next governor, his efforts to challenge a ruling that said that state's anti-sodomy law was unconstitutional. But as Virginia and Montana make clear, just because the constitution says something about gay sex doesn't mean local conservative lawmakers won't put up a fight. Buzzfeed's Chris Geidner explains how the Montana law remained, even though federal and state decisions deemed it unconstitutional: "The courts' actions do not actually take the laws off the books, but rather render them unconstitutional to be enforced," Geidner writes. "Few states have, in fact, repealed the laws since the 2003 ruling that applied nationwide."

So essentially, the Montana bill to get rid of the existing law is a formality—to make a point about gay rights and wipe an ugly part of the state's history off the books, which is something that one of the bill's supporters says people have been trying to do since 1991: "I was excited and shocked at the same time," Rep. Bryce Bennett, Montana's only out gay lawmaker, told Geidner. "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."

On the other side of that, though, is the bloc of 36 Republicans who want to make a point about keeping the law in place:

"Sex that doesn't produce people is deviant," Rep. Dave Hagstrom, who voted against bringing the bill to the floor, is quoted as saying in the Billings Gazette. "That doesn't mean it’s a problem. It just means it's not doing its primary purpose."

"If some second-grade teacher wants to take her lover and introduce her lover to the kids, I don't think there is anything that the school board can do to stop that," said Rep. Jerry O’Neil, who also voted against the bill.

We hate to break it to the lawmakers in Helena, but there are plenty of people, both gay and straight, who are having sex (perhaps even right now) without the sole purpose of trying to "produce people." Justice Kagan said as much during the Supreme Court's Prop. 8 hearing last month. A final vote should arrive Wednesday afternoon.

Photo by: Alvaro Pantoja via Shutterstock

This article is from the archive of our partner The Wire.