JURIST Guest Columnist Jon Ellingson of the American Civil Liberties Union of Montana argues that many of Montana’s state statutes are unconstitutional, especially those which confer particular rights and responsibilities upon only heterosexual spouses while simultaneously denying same-sex couples of the same rights and responsibilities…

The politics of Montana present unique challenges to those who are working to protect and advance the rights of gay and lesbian residents.

In 2004, the voters amended the Montana Constitution [PDF] to prohibit same-sex partners from marrying. And while we have routinely elected moderate Democrats in statewide elections, the legislature has recently been firmly controlled by conservative Republicans who are far from friendly to the rights of gays and lesbians. Given this political environment, it may have seemed that little could be done to protect the rights of this important segment of our population. The constitutional amendment foreclosed a challenge to the ban on same sex marriage, and working with the legislature for the enactment of a civil union/domestic partnership act would have been an act of futility.

But we did not give up.

The national American Civil Liberties Union (ACLU), together with the Montana ACLU and statewide gay and lesbian organizations devised a new strategy. We decided to challenge the constitutionality of the numerous state statutes that confer benefits and impose responsibilities on people who are “spouses,” but which deny those benefits and responsibilities to similarly situated same sex partners. These statutes affect a wide range of events that occur for both married couples and same sex partners, but which have different implications depending on whether or not partners are married. For example, a same sex partner is not automatically recognized by health care providers as someone entitled to information about a sick partner or given the right to participate in making healthcare decisions about that partner. Similarly, that partner may be denied bereavement benefits because he or she is not a “family” member. Nor will that person have any right to the property of a deceased partner under the laws of intestate succession.

We filed suit in July 2010 and requested a broad declaration that the statutory structure described above is unconstitutional as applied to same-sex partners. Our plaintiffs are similarly situated to married heterosexuals in all respects except for their gender orientation and consequent inability to marry. We asserted that these couples were being denied the equal protection of the law and that there was neither a rational nor a compelling state interest that could justify the distinction.

The case eventually made its way to the Montana Supreme Court after the lower court granted the state’s motion to dismiss and denied the Plaintiffs’ motion for summary judgment.

We argued our case in front of the Montana Supreme Court in April 2012. On December 17, the judgment of the court was issued. Three of the seven justices agreed with us entirely. They would have declared that all of the statutes that address the rights and responsibilities of spouses should be revised to include same-sex, committed partners. But four of the seven, while not necessarily disagreeing with us in principle, held that, procedurally, we had asked the court to do too much at one time. These justices denied our request for declaratory relief and remanded the case back to the district court. In sending the case back, the Court gave us the right to proceed at the district court level by amending our complaint to list the specific individual statutes that we wish to challenge.

Justice James Nelson wrote a passionate dissent that characterized the judgment as “defeat.” While I appreciate enormously his opinion and commitment to our cause, I cannot agree with him. We are not defeated, but only temporarily diverted from own goal. We will go back to the district court and amend our complaint. We will demonstrate concretely, with reference to specific statutes, the injustice that is suffered by our plaintiffs. And we will prove that in a society that aspires to recognize individual human dignity, that each of us has the right to responsibly direct and control the most intimate aspects of our own lives. In such a society there is no state interest that can justify this statutory discrimination against gays and lesbians.

Jon Ellingson is the Legal Director for the ACLU of Montana. Prior to this position, he was the Assistant Attorney General for Montana.

Suggested citation: Jon Ellingson, The Case of Donaldson, et al. v the State of Montana Is Not Over, JURIST – Hotline, Jan. 22, 2012, http://jurist.org/hotline/2013/01/john-ellingson-donaldson-montana.php