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Gay Sex, Raw Milk, and a Free Society

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Although gay sex and raw milk have nothing to do with each other, they have everything to do with individual liberty, private property, and a free society.

The governor or Montana recently signed into law a bill to strike unconstitutional language from a law on the books that criminalized sexual acts between two people of the same sex. However, he won’t have a chance to sign into law a bill to allow the sale of raw milk in Montana because it failed to pass the legislature before it adjourned on April 24.

Under Montana law, deviant sexual conduct is a crime:

45-5-505. Deviate [sic] 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.

The definition of “deviate sexual relations” initially meant “sexual contact or sexual intercourse between two persons of the same sex or any form of sexual intercourse with an animal.” However, the “same sex” part of the law has been unenforceable since a 1997 Montana Supreme Court decision ruled that it was unconstitutional.

What the governor of Montana signed into law on April 18, 2013, was a bill (SB107) that included a provision to strike the “same sex” part of the definition and limit “deviate sexual relations” to just “any form of sexual intercourse with an animal.” The bill passed the Montana Senate by a vote of 38-11 on February 20, 2013, and passed the House by a vote of 64-35 on April 10, 2013. The “no” votes were all by Republicans, who hold a 29-21 majority in the Montana Senate and a 61-39 majority in the House.

Current Montana law forbids selling milk in Montana that has not been pasteurized.

According to David Gumpert, author of The Raw Milk Revolution, about 20 states allow the sale of raw milk from the farm, 10 states allow the sale of raw milk at retail, and about 20 states don’t allow the sale of raw milk at all.

A bill (HB574) to “establish a small herd exemption permit for certain producers of milk” passed the Montana House Agriculture Committee by a vote of 16-1 on March 21, 2013, and by the full House by a vote of 96-3 on March 26, 2013. The bill directed the Department of Livestock to issue “small herd exemption” permits to producers of raw milk or raw milk products for human consumption:

(a) if the person’s dairy herd is:

(i) comprised of [sic] fewer than 15 lactating cows, 30 lactating goats, or 30 lactating sheep, except that the dairy herd may include other cows, goats, or sheep that are not lactating or are producing milk for purposes other than human consumption; and

(ii) registered with the department; and

(b) if the raw milk and raw milk products produced by the person’s dairy herd are all produced and processed on the same premises.

Permit holders were to be exempted from the usual licensing, sanitation, quality, and labeling requirements for milk. Also, they could sell directly only to consumers and not for purposes of resale.

The bill was amended and passed by the Montana Senate Agriculture, Livestock and Irrigation Committee by a vote of 9-2 on April 11, 2013. The substantial changes made to the bill ended up killing it. As amended, the bill said “anyone selling raw milk would have to meet the ‘Grade A’ standards of larger dairies, that anyone buying milk from a smaller herd would have to own a share of the cow, goat or sheep, and that anyone harmed by consuming raw milk could not hold the state liable.” Because of the liability exemption, a two-thirds vote was required for passage in the full Senate. So even though the vote for the bill on April 18, 2013, was 32-17, it still failed to pass.

The Montana Department of Livestock opposed the bill to allow the sale of raw milk. Christian Mackay, the executive director of the department, termed raw milk “a public-health risk, even with this kind of regulation.” Naturally, Montana dairy farmers disagree and supported the original bill as passed by the House.

This dichotomy can be seen elsewhere.

The National Milk Producers Federation, which represents the big dairy companies, described raw milk as “a potentially dangerous product.” However, small dairy farmers disagree and tout the safety and health benefits of raw milk.

The federal Food and Drug Administration, which banned the interstate sale of raw milk in 1987, maintains that there is “no meaningful difference in the nutritional values of pasteurized and unpasteurized milk” and that raw milk “can carry dangerous bacteria such as Salmonella, E. coli, and Listeria.” Nevertheless, advocates of consuming raw milk disagree and have argued that unpasteurized milk is nearly as safe as pasteurized milk, has health benefits that outweigh its risks, is a significant factor in preventing allergies and asthma, and has more nutrients.

The real issue here is one of freedom, not health, safety, or nutrition. The merits and demerits of drinking raw milk are immaterial. Laws against the sale of raw milk are inconsistent with individual liberty, private property, and a free society.

As former Republican presidential candidate and member of Congress Ron Paul stated regarding the issue, “If we are not even free anymore to decide something as basic as what we wish to eat or drink, how much freedom do we really have left?”

Montana Republicans apparently agreed, since only three of them (out of 61) opposed the original bill to “establish a small herd exemption permit for certain producers of milk.”

Yet when it came to sexual freedom, Montana Republicans cast aside their support for individual liberty, private property, and a free society because they viewed certain sex acts as immoral.

One representative said “he holds no ill will toward gay people, but he and other Republicans opposed the legislation and similar efforts along religious lines.” Another representative said, “There is an enormous biblical principle here. There is a truth. I know that public opinion may be swaying with the time but the truth does not sway and so it was default to scripture.”

The real issue here is one of freedom, not scripture, religion, or morality. Like the subject of consuming raw milk, the morality or immorality of certain sex acts is immaterial. And laws against the sexual practices of consenting adults in their own homes are likewise inconsistent with individual liberty, private property, and a free society. That a given act is a sin, a vice, or an immoral activity doesn’t mean that it should be a crime.

But having no concept of a free society is not the only problem with Montana Republicans.

One, the part of the law on the books in Montana that criminalized sexual acts between two persons of the same sex was declared unconstitutional by the Montana Supreme Court in 1997 in response to a 1995 lawsuit. And then there was the U.S. Supreme Court case of Lawrence v. Texas (2003) that nullified state sodomy laws. Arguing against a bill that would remove unconstitutional language from a law is just political grandstanding by Republicans to appeal to their religious-right base.

Two, the scripture referred to by one of the Montana state representatives has a great deal more to say about fornication between members of the opposite sex than it does about fornication between members of the same sex. Is he or any Montana Republicans in favor of criminalizing sexual acts between consenting adults of the opposite sex? Why not?

Three, there are other things aside from “deviate sexual conduct” that are likewise immoral. Drunkenness, gluttony, and lying are sins in any religion. Why don’t governments criminalize those activities? Why is it that sexual sins are always singled out?

And four, short of the state of Montana’s putting cameras in the bedrooms of all its residents, laws criminalizing the activities of consenting adults on private property are utterly unenforceable.

Gay sex and raw milk — Montana Republicans just don’t get their relation to a free society. Toleration is not approval; legal does not mean recommended; permissible does not mean wholesome; vices are not crimes.

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