Civil Unions Lose Round 1 in Montana

Montana District Court Judge Jeffrey M. Sherlock has granted the state’s motion to dismiss a suit filed by the American Civil Liberties Union of Montana on behalf of several same-sex couples seeking formal equal access to the rights provided under state law to married different-sex couples.

On April 19, Sherlock found it would be an “inappropriate exercise” of the court’s power to order the Legislature to enact a law providing domestic partnerships or civil unions.

District court says separation of powers precludes judicial action

Montana courts have demonstrated a relatively progressive record on LGBT rights in recent years. In 1997, the State Supreme Court threw out the state’s ban on consensual gay sex. And, in 2004, that court ruled the state university’s policy of denying insurance coverage to domestic partners of gay employees violated the equal protection requirements of the State Constitution. Montana voters have not been as progressive, voting in 2004 to enact a ban on marriage by same-sex couples.

In line with a legal strategy pursued in other states with such constitutional bans, the Montana plaintiffs argued the marriage amendment was irrelevant, since they are not seeking a right to marry. Instead, they are claiming the state is obligated by its constitutional equality guarantee to provide a way for same-sex couples to access the same rights. They bolstered their claim by pointing to the rights to privacy, dignity, and to pursue life’s basic necessities, all set out in the Montana Constitution.

The plaintiffs noted the state high court rulings in Vermont and New Jersey that led to the adoption of civil union laws and to a 2005 decision by the Alaska Supreme Court that the constitutional ban on same-sex marriage there did not remove the state’s equal protection obligation to provide public employees with benefits for their same-sex partners.

Sherlock distinguished the Montana case from those three states. The Alaska Supreme Court, he pointed out, was not asked to order the Legislature to adopt a formal legal structure for same-sex couples. In Vermont and New Jersey, voters had not amended their constitutions to include a ban on same-sex marriage.

Sherlock took note of the ACLU’s itemization of the state protections same-sex couples lack, and wrote, “In addition to these statutory arrangements, there appears little doubt that Plaintiffs have been subject to private prejudice, discrimination, and even violence in Montana.”

“Indeed,” he wrote, “this Court finds itself quite sympathetic to the plight of Plaintiffs.”

But, he concluded, he did not have the authority to award the couples what they were seeking. “Plaintiffs want this court to direct the Legislature to enact a set of statutes,” Sherlock wrote, “This Court finds that to be an inappropriate exercise of this Court’s power.” He specifically cited the Montana Constitution’s provisions on separation of powers.

The Constitution’s equal protection clause can be applied, the judge wrote, to a specific instance of statutory discrimination, such as in the public employee benefits case decided by the state’s high court in 2004. That is a different matter, he concluded, from ordering the Legislature to enact a civil union law.

“For this Court to direct the Legislature to enact a law that would impact an unknown number of statutes would launch this Court into a roiling maelstrom of policy issues without a constitutional compass,” Sherlock declared.

The 2004 marriage amendment, he found, was not determinative in this case, but it “plays into the jurisprudential decision that Plaintiffs’ requested relief constitutes an impermissible sojourn into the powers of the legislative branch.” Looking back at the referendum campaign, he concluded that “the proponents and opponents seem to both acknowledge that the marriage amendment would have something to do with benefits and obligations that relate to the status of being married.”

The ACLU has 60 days to file an appeal, though no decision on that point has yet been made.

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