Montana District Court Judge Jeffrey M. Sherlock has granted the state's motion to dismiss in Donaldson v. State of Montana, Cause No. BDV-2010-702 (April 19, 2011), a suit filed by the American Civil Liberties Union of Montana on behalf of several same-sex couples seeking equal access to the various rights provided under state law to married different-sex couples through some formal legal status. Judge Sherlock found that 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 for same-sex couples.
The Montana courts have had a rather progressive record on LGBT rights over the recent past. In 1997, the Montana Supreme Court invalidated the state's ban on consensual gay sex in Gryczan v. State, 942 P.2d 112. More recently, that court ruled in Snetsinger v. Montana University System, 104 P.3d 445 (2004), that the state university's policy of denying insurance coverage to same-sex domestic partners of gay employees violated the equal protection requirements of the state constitution. On the other hand, Montana voters have not been as progressive, voting in 2004 to enact Article XIII, Section 7, of the Montana Constitution, which provides: "Only a marriage between one man and one woman shall be valid or recognized in this State."
The plaintiffs, pursuing a strategy that LGBT rights groups have devised for state constitutional litigation in jurisdictions that constitutionally ban same-sex marriage, argued that the marriage amendment was irrelevant to their claim, as they are not seeking a right to marry from the court. Rather, noting the many ways in which state law denies rights to same-sex couples that are made available to different-sex couples who can marry, they are seeking a declaration that the state is obligated by its constitutional equality guarantee to provide a way for same-sex couples to access the same rights. They also argued that failing to provide equal access to such rights through some sort of a legally-recognized status violated their rights to privacy, dignity, and to pursue life's basic necessities, all rights mandated in the Montana Constitution (Article II, sections 3, 4 and 10).
The plaintiffs called the court's attention to several important decisions from other state supreme courts. In Alaska, the Supreme Court ruled in Alaska Civil Liberties Union v. State, 122 P.3d 781 (2005), that despite the passage of a state constitutional amendment banning same-sex marriage, the state was violating its constitutional guarantee of equal protection by not extending employment benefits coverage to same-sex partners of state employees. In Vermont and New Jersey, the state supreme courts ruled that denying the rights and benefits of marriage to same-sex couples violated state constitutional equality guarantees, which could be remedied by passage of alternative structures such as civil unions or domestic partnerships. Baker v. State, 744 A.2d 864 (Vt. 1999); Lewis v. Harris, 908 A.2d 196 (N.J. 2006).
Acknowledging these rulings from other states, Judge Sherlock found them distinguishable in relevant ways. He pointed out that the Alaska Supreme Court was not asked to order the state legislature to adopt a formal legal structure for same-sex couples. In the Vermont and New Jersey cases, he noted, the people of those states had not amended their constitutions to include a specific ban on same-sex marriage.
Judge Sherlock observed that the plaintiffs presented the court with a list of Montana statutory provisions that provide benefits or entitlements to married couples that are not available to same-sex couples, and had presented evidence of "real life scenarios where these laws have affected them." He commented, "In addition to these statutory arrangements, there appears little doubt that Plaintiffs have been subject to private prejudice, discrimination, and even violence in Montana." He conceded that the court should not consider "personal, moral, or religious beliefs about whether persons should enter into intimate same-sex relationships or whether same-sex individuals [sic] should be allowed to marry" in making his decision, and that it was the court's "duty to preserve the constitutional rights of all parties regardless of how unpopular they may be or unpopular may be their cause." "Indeed," he wrote, "this Court finds itself quite sympathetic to the plight of Plaintiffs."
However, he concluded, it was just not appropriate to award the relief that Plaintiffs were seeking. "In sum, Plaintiffs seek this Court's order requiring the Montana legislature to enact a domestic partnership or civil union arrangement. In other words, Plaintiffs want this court to direct the legislature to enact a set of statutes. This Court finds that to be an inappropriate exercise of this Court's power," he wrote, citing the state constitution's provision on separation of powers between the branches of government.
While Judge Sherlock indicated he would have no problem using the equal protection clause in a case presenting a specific instance of statutory discrimination, such as the employee benefits policy upon which the Montana Supreme Court ruled in the Snetsinger case, it struck him as an entirely different matter for the court to address the issue by ordering the legislature to create a particular statutory scheme such as 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," he declared.
While conceding that the marriage amendment, standing alone, would not preclude the relief plaintiffs were seeking, Sherlock insisted that the existence of that amendment "plays into the jurisprudential decision that Plaintiffs' requested relief constitutes an impermissible sojourn into the powers of the legislative branch. He noted that during the referendum campaign that produced the amendment, both proponents and opponents had referred to more than just the label of marriage as being at stake. "Indeed," he wrote, "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."
Ultimately, Sherlock concluded, granting the relief requested by the plaintiffs "would violate the constitutional separation of powers existing in the state of Montana," so he granted the state's motion to dismiss and denied the plaintiffs' motion for summary judgment.
According to press reports, the ACLU of Montana was "evaluating all of our options" and did not consider that its "advocacy on this point was at an end." The national ACLU Lesbian & Gay Rights Project, reporting about the case on its website, indicated that they had 60 days to file an appeal and that "the journey for fairness is far from over."