Montana’s constitutional definition of marriage as one-man, one-woman is similar to other states where legal decisions have overturned such provisions, but same-sex marriage advocates are following a different strategy for change.

“Clearly the momentum is forcing policy makers and members of the judiciary to reexamine the status quo,” said Scott Crichton, executive director of the Montana Chapter of the American Civil Liberties Union. “You’ve got to take notice when state after state attorneys general won’t defend the case. But if the U.S. Supreme Court takes up the marriage case, and they don’t rule favorably, what we’re doing in Montana becomes very germane.”

The past couple weeks have seen a steady march of developments across the nation in support of gay marriage. Arizona Gov. Jan Brewer vetoed a bill last Wednesday that would have let businesses refuse service to gays and lesbians on religious grounds. Federal judges in Texas, Kentucky, Virginia, Oklahoma, Ohio and Utah have ruled that marriage discrimination laws or constitutional amendments violate the U.S. Constitution.

The Montana case, Donaldson v. Guggenheim, could be an alternate legal path if those federal cases stall, Crichton said. That’s because it ignores the 2004 amendment that voters passed by a nearly 2-to-1 margin in favor of an older clause.

“We decided to litigate to ensure the rights of same-sex partners as domestic partners,” Crichton said. “We didn’t mention the constitution in our complaint. We’re arguing that committed same-sex couples have the right to equal protection and human dignity that’s guaranteed by our constitution, and they should be so recognized in all affairs that relate to state law.”

That discrimination shows up in a variety of ways. For example, gay couples can’t file joint Montana income tax returns even if their unions are recognized in another state, despite a federal IRS ruling allowing such returns.

However, state Revenue Director Mike Kadas said last October he had no plans to start asking taxpayers to prove their marital status, nor did he have funding to institute such a verification program.

***

University of Montana law professor Anthony Johnstone said the Montana case could grow in significance as other states work their way through the federal system.

“The U.S. Supreme Court in U.S. v. Windsor struck down the Federal Defense of Marriage Act, but it did so on ambiguous federal constitutional grounds,” Johnstone said. “Not even all the justices on the prevailing side agreed what constitutional right they were vindicating. And after Windsor, there have been multiple federal court decisions and none have upheld a ban on same-sex marriage. But they all interpret the Windsor case slightly differently.”

Those decisions have fallen in three main boxes, Johnstone said. Some make a 14th Amendment argument for equality, saying there’s no rational basis to discriminate based on sexual preference. Others see a fundamental liberty to marry whomever you wish. And a third tack takes a federalist position that the U.S. government has no business telling states how to define marriage with a federal law.

Meanwhile, Montana attitudes appear to have shifted closer to a midpoint from the previous strong support for opposite-sex marriage. The 2013 Montana State University-Billings poll found 75 percent of President Barack Obama’s supporters also supported same-sex marriage, while 85 percent of those opposed to Obama also opposed gay marriage.

The poll found 46.6 percent of its respondents supporting same-sex marriage, while 42.6 percent opposed it and 10.8 percent were undecided. Supporters included 76 percent of Democrats and 47 percent of independents. A majority of Republicans, 61 percent, opposed same-sex marriage.

The poll reached 410 Montanans in October, and had a margin of error of plus or minus 5 percent.

Rep. Jerry O’Neil,

R-Columbia Falls, is a supporter of Montana’s constitutional marriage definition. He said he hasn’t heard of any efforts to change the amendment, but he’s considering a move of his own in the 2015 legislative session.

“I’m thinking of carrying a bill for freedom of association,” O’Neil said. “Say I’ve got a gay friend and he’s a landlord. He ought to be able to reserve his property to rent to another gay person, or a Lutheran or whatever. We have a right to freedom of association under the First Amendment. I think that ought to be put in the constitution or statute.”

Legislators in Georgia, Idaho, Mississippi, Missouri, Ohio and South Dakota all have proposed similar bills to the one that passed the Arizona Legislature, and Oregon activists are proposing a “Protect Religious Freedoms Initiative” on the statewide ballot. Other recent legislative efforts have been withdrawn from consideration, including the measures in Colorado, Kansas, Maine, Tennessee and Utah.

The Episcopal Diocese of Montana’s 2012 general convention decided to allow congregations to institute same-sex partnership blessings, and Missoula’s Holy Spirit Episcopal Church is one of the first to offer it. But the Rev. Terry Ann Grotzinger said the move was not a new form of marriage and had no connection to outside events.

“There was no associated intent to link to anything else,” Grotzinger said. “For us, it was a question of who are we as a people, and is this something we believe. We’re an open and inclusive community, that’s what we’ve always been. If they want a blessing, they come talk to me, just like any other committed relationship. There’s preparation involved and things that have to be done.”

At the UM School of Law, Johnstone said changes in other state legislatures or federal courts won’t necessarily trigger a similar change in Montana’s legal framework. But if federal appeals courts or the Supreme Court rule same-sex marriage bans violate the U.S. Constitution, that could make the Montana constitutional amendment moot.

“What it means is it’s unenforceable,” Johnstone said of that outcome. “If you tried to go into court and enforce any law, the other side would have a clear defense.”

Reporter Rob Chaney can be reached at 523-5382 or at rchaney@missoulian.com.

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(19) comments

jus wundrin
jus wundrin

“We decided to litigate to ensure the rights of same-sex partners as domestic partners,”

Because thats all you got: run to a judge when you childishly dont get your way. Prop 8 in CA was the testbed, and you lost big time. Why not put it to a vote? What are you afraid of?

The obama corporation is violating the constitution when they cherry pick which laws they will enforce, and which laws they wont. Kinda gives the progressive soundbite "its the law of the land" no credence at all.

Scott Crichton

I appreciate Rob Chaney's timely story. One clarification, I misspoke to say “We didn’t mention the constitution in our complaint" What I meant to communicate was that we never mentioned the constitutional ban on marriage in our complaint. Obviously, we mentioned the constitution. Sorry for any confusion on my part.

JustEd
JustEd

As long as my family is being denied equal rights we will continue to take advantage of the abuse. It is costing you heteros dearly in our case.

MissoulaMom

The people who leave hateful and hyperbolic comments online regarding others' families may never see themselves as being in the wrong. But, as our nation moves closer to equality for all people, and equal recognition of all families, it will become clearer and clearer that it is only correct to live and let live, and to guarantee that all Americans have equal protection under the law. Gay or straight, a family is a family, and all families deserve the equality that our nation has fought for.

Atheist Educator
Atheist Educator

MissoulaMom said "The people who leave hateful and hyperbolic comments online regarding others' families may never see themselves as being in the wrong."

Of course they don't. You see, they have this book, and they tell us that this book contains all anyone needs to know about what is right and wrong. They tell us that this book is inerrant. Therefore, since this book says that homosexuality is wrong, they feel entire justified judging others and comments on what they as their sinful ways.

Of course, they ignore the fact that that book condones human slavery.

walter12

Of course, PepsiGalore is correct. Once the gays have what they want, the Oxymoron called Gay Marriage, what will be their next demand? What is the real reason for so much attention given to 5% of the population of this sick and troubled nation?

Objective observer

Actually Walter, the question is, what is the real reason to deny equal rights to 5% of the population. Hmmmm?

Atheist Educator
Atheist Educator

Objective observer, don't expect an answer from walter12. What he, and others, don't realize is that alloying gays to marry in no way restricts the rights of others and, historically, that's how freedom works in this country.

If the opponents were so concerned about protecting marriage, wouldn't you think that they'd be campaigning just as vociferously to repeal our liberal divorce laws?

jus wundrin
jus wundrin

Might as well toss in pedophiles too. Hmmmmmmmmmmm?

JustEd
JustEd

jus wundrin - totally different. One is consenting adults, the other is child abuse. Speaking of child abuse, maybe we need laws making it illegal to teach children religion so they can make educated decisions once they have grown up.

jus wundrin
jus wundrin

Theyll get their rights sooner or later -ed. 25 years ago gay marriage was virtually inconceivable. Planned whateverhood is now fighting for the rights of the minor child to make their own decisions when it comes to a serious medical procedure. The child becomes the adult; the door opens a little wider.

Change a few laws here, some regulations there, mix in a little gubment school indoctrination, then ask "why do you oppose a loving relationship?"

Gays, and their supporters opened the can, and the worms are comin out. Its human nature, conventional wisdom, flavor of the day, or what ever floats your boat!

Works many ways -ed. Enjoy your utopia.

Objective observer

Equating consensual sex with child abuse now huh. Do you even realize how ridiculous you sound?

JustEd
JustEd

Objective observer - she is totally clueless.

PelosiGalore
PelosiGalore

Another misleading headline. They are not equality advocates they are gay advocates. If they were for equality they would be pushing for equality for everyone, not simply gays. Are they pushing to recognize polygamous marriages? That's what made MLK so great. He didn't fight for just black rights, he fought for the rights of everybody!

Gomez

As a straight person, how does this bill take any of your rights away?

jus wundrin
jus wundrin

Because then I am forced to acknowledge, and revere a behavior more than just what it is; just another destructive lifestyle choice.

JustEd
JustEd

jus wundrin - that is a bunch of bs. Just like I'm not forced to acknowledge an revere the destructive christian lifestyle choice. It is legal, but I don't have to accept it.

jus wundrin
jus wundrin

Sorry -ed, just ask the florist, baker, and photographer, that refused to provide service for a gay wedding.

http://www.worldmag.com/2013/06/another_bakery_sued_for_not_baking_same_sex_wedding_cakes

http://www.reuters.com/article/2013/04/19/us-usa-gaymarriage-washington-idUSBRE93I08820130419

http://www.outsidethebeltway.com/court-holds-that-wedding-photographer-cannot-refuse-service-to-gay-couples/

http://www.thegatewaypundit.com/2011/07/surprise-new-york-djs-and-florists-who-refuse-to-marry-gays-can-get-sued/

Im sure churches will be next.

JustEd
JustEd

jus wundrin - yes, some business people are not the brightest bulbs. I can't understand why gay people would even want to do business with them. There are better choices.

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