Betsy Griffing, Legal Director of the American Civil Liberties Union of Montana, argues that despite a constitutional amendment banning same-sex marriage in Montana, the equal protection guarantees of the state constitution and Montana Supreme Court precedent require the recognition of same-sex couples short of marriage…

In Donaldson and Guggenheim v. Montana, the American Civil Liberties Union of Montana and the National ACLU sued on behalf of six same-sex couples seeking legal recognition of their long-term committed relationships. Montanans had amended the Montana Constitution to define marriage as between a man and a woman, but that amendment does not prevent analyzing the claims under either the equal protection or privacy clauses of the state constitution.

The suit explains that the statutory scheme granting protections, obligations and benefits to one set of couples (opposite sex couples who can marry) but excluding a similarly situated set of couples (committed same-sex couples who cannot marry) violates equal protection and privacy rights under the Montana Constitution. Strict scrutiny should be applied to that statutory scheme, and there is no compelling state interest supporting this discrimination.

With respect to the privacy claim, the right to choose a life partner and protect a family relationship is integral to the express right of privacy contained in the Montana Constitution. That right of privacy includes the right to substantive protections which, at the very least, require the state take some affirmative action to acknowledge and support the domestic partnership or family unit. The express right of privacy, coupled with the right to human dignity provision in the Montana Constitution, forms the basis for legal recognition of same-sex couples who are similarly situated to married couples.

Along with these progressive state constitutional provisions, Montana has a history of recognizing that same-sex relationships are entitled to a modicum of protection under the equal protection and privacy clauses. In Gryczan v. Montana, the Montana Supreme Court invalidated the state’s sodomy law six years before the US Supreme Court invalidated a similar Texas law in Lawrence v. Texas. In Gryczan, the Montana Supreme Court recognized the expansive protections of Article II, § 10 of the Montana Constitution, which states that the “right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” Because the right of privacy is explicit, it afforded greater protections than those provided under the US Constitution. The Gryczan Court held the statute criminalizing same-sex sexual conduct violated the personal autonomy component of this fundamental privacy right.

In Snetsinger v. Montana University System, the Montana Supreme Court reviewed a university policy that allowed opposite-sex unmarried couples to have health insurance coverage, but denied same-sex unmarried couples such coverage. The Court held that the policy violated the state’s Equal Protection Clause. Most recently, in Kulstad v. Maniaci, the Court reviewed the state third-party parenting statute that allows someone other than the adoptive or natural parents to establish a parental interest with the child. A lesbian couple had adopted two small children, but only one had her name on the adoption certificate. The Court affirmed the constitutionality of the statute, recognizing the parental interest in the non-adoptive parent.

With these foundational cases, the ACLU filed suit in state district court on behalf of six same-sex couples, each in long-term committed relationship and willing to enter into a domestic partnership arrangement if it were provided by the state of Montana. We argued that the provision in the state constitution defining marriage as between one man and one woman could not be construed to limit the equal protection and privacy clauses, and therefore was restricted to only sanctioning the designation of marriage. The state trial court dismissed the case, however, focusing on one of the remedies that was requested — an order to the state of Montana to offer the same-sex couples a legal status through a domestic partnership scheme. The trial court held that such an order violated separation of powers principles, and while the marriage amendment would not preclude challenges to individual statutes, it bolstered the court’s reluctance to engage in a broad review of the statutory scheme.

The case is currently on appeal to the Montana Supreme Court, with briefing to be done this fall. The Court should continue its recognition of the protections afforded all Montanans under its state constitution and determine that it can provide relief for the ongoing injuries experienced by same-sex couples in Montana.

Betsy Griffing has been the Legal Director of the American Civil Liberties Union of Montana for five years. She has been practicing law in Montana for over 30 years, with a focus on constitutional law. Griffing has also taught Montana constitutional law at the University of Montana School of Law for seven years.

Suggested citation: Betsy Griffing, Montana Precedent and the Rights of Same-Sex Couples, JURIST – Hotline, Sept. 13, 2011, http://jurist.org/hotline/2011/09/betsy-griffing-montana-suit.php.