Editor’s note: This is the first in a two-day series on the future of gay rights in Montana, in the wake of last week’s U.S. Supreme Court ruling on the Defense of Marriage Act.
Caitlin Copple wants the city of Missoula to score 100 percent on the Human Rights Campaign’s municipal equality index, a measure of a city’s dedication to equality for queer couples.
This year is the first the Garden City will be ranked, said Copple, a member of the Missoula City Council. To hit the mark, she is proposing two new programs to make this city as fair as possible to couples who are lesbian, gay, bisexual and transgender.
“Missoula is far and away going to beat the pants off the other cities in Montana, which I just think is really cool,” said Copple, an openly gay councilwoman herself. “Our city is a beacon of hope to other LGBT people in Montana.”
Copple chose to unveil her initiatives in June for a couple of reasons. It’s Pride Month, first of all, and secondly, she knew the timing would coincide with a couple of U.S. Supreme Court decisions that would affect gay rights.
Sure enough, last Wednesday marked milestones for relationship fairness from downtown Missoula all the way to the steps of the high court in Washington, D.C. The justices allowed gay marriages to resume in California and struck down a provision that denied federal benefits to married gay couples; here, Copple introduced a proposal to formally acknowledge same-sex partners in Montana.
In this state in recent years, many protections for the LGBT community have come from local governments. Statewide efforts have largely gone a different direction, but onlookers see change on the horizon in cities and in the courts despite some moves by the Montana Legislature to curtail equal rights.
In 2004, voters supported an amendment to the Montana Constitution to recognize marriage as only between one man and one woman, and Montanans still largely oppose gay marriage, Copple said.
Polls, though, show the public supports equal treatment for gay couples, and the ACLU of Montana is poised to push ahead with a lawsuit that its legal and political analysts believe is the best hope to establish equal protections for partners of all kinds in Montana.
“One of the reasons I think our challenge is really significant is our (constitutional amendment) just says marriage must be between a man and a woman,” said Scott Crichton, executive director of the ACLU of Montana. “It doesn’t say the state can’t provide equal protections to same-sex couples. And so I think that’s one of the strategic and significant implications of our case.”
Copple wasn’t exaggerating when she described Missoula as a beacon for the equal-rights movement in Montana. In 2010, Missoula was the first city in the state to adopt an ordinance that made it illegal for employers to fire people for not being straight and banned landlords from booting gay tenants out of their homes.
The same effort had failed multiple times in the Montana Legislature, said Jamee Greer, organizer with the Montana Human Rights Network. Sometime in the mid-2000s, he said, advocates realized the climate in Helena was hostile, and they started hammering out a different tactic.
“We needed a new strategy, a new way to bring people together in the LGBT communities across the state and build momentum toward a win in Helena,” Greer said.
That new strategy took the cause to local government leaders. In 2010, the Missoula City Council passed its law protecting people on the basis of sexual orientation and gender identity and expression; late in 2012, Helena did the same, albeit with fewer protections than the law here.
“I think we’ve made it pretty clear that Bozeman is our next goal,” Greer said.
Bozeman might not be the next city that adopts such an ordinance, though. Greer said other cities have been approaching the network for help crafting language; he declined to name them, but described them as towns of a couple thousand people.
Greer has observed a twist in the movement, too. He said success on the national front has almost led to a hint of complacency on the local front.
“We’re experiencing an interesting phenomena in other cities where people are saying that they feel like full equality is inevitable,” Greer said. “They’re watching the national discussion about marriage. They’re tracking non-discrimination laws, too. But they’re not making the connection that they can act now.”
The winds of change may be strong enough to blow in equality within several years, but that’s no reason to rest on laurels in the meantime, Greer said. “To me, as a queer activist, that is unacceptable. We need these protections today.”
In Missoula, Councilwoman Copple is charging ahead to put more protections in place.
Earlier this month, she presented a resolution the council adopted to support Missoula’s effort to earn top marks on the equality index. Copple said the rankings will come out in the fall, and she wants a perfect score.
“I just thought, since we’re so close, why not try to get 100 percent?” Copple said. “And we only need a few policy changes to do it.”
Missoula already has in place its non-discrimination ordinance, the centerpiece of the criteria, she said. She is launching a voluntary domestic partner registry where couples who provide marriage licenses or otherwise show they are financially interdependent get a wallet card that confirms they are partners.
Of course, said Copple, it’s Montana. “People might not want to register for privacy reasons.”
But the idea is first responders will learn to look for the cards to identify significant others in emergencies, she said; hospital staff can use the ID to allow partners at bedsides, and firefighters responding to homes will know a couple of residents aren’t just “roommates.”
Any couple in the state can register as long as one of the partners resides in Montana, she said.
“The city wishes to recognize the mutual support, caring and commitment unmarried couples have in their relationships and further wishes to support the right and dignity of unmarried couples to have their relationships recognized by the creation of a Domestic Partnership Registry,” reads the draft resolution, in part.
Copple also is setting up an LGBT liaison for city employees, and she likely will be the first one. Volunteers will keep their ears to the ground on matters important to the LGBT community and be the point of contact for employee concerns.
At the same time she’s working to tie up loose ends in City Hall, Copple has her eye on the big picture in Montana. She said she hopes the next step for gay couples is a repeal of the marriage ban.
“It would be a huge undertaking to do something like that, but the polling that I’ve seen shows that it will pass,” Copple said. “While most Montanans still don’t favor full marriage equality, there’s a lot of support for fairness and equal treatment under the law, whether it’s through domestic partnerships or civil unions.”
A variety of legal avenues could lead to full equality for same-sex couples in Montana, including the petition for repeal that Copple mentioned.
A number of cases that challenge state marriage prohibitions are in the pipeline to the Ninth Circuit Court of Appeals, said Crichton, of the Montana ACLU. At this point, though, he said the most promising step for couples in Montana is the ACLU’s Donaldson and Guggenheim v. State of Montana.
The case doesn’t touch marriage in the constitution at all, and that very limitation creates its chance for success. Yes, people want gay marriage “yesterday,” and “that day may be coming,” Crichton said. For now, the best move in Montana tactically and strategically is to stake out a win without taking on marriage.
“I know there’s some people that just want to get to the goal line. We want to get to the goal line, too, but we’re taking it incrementally,” Crichton said.
After July 4, the ACLU of Montana plans to refile the Donaldson lawsuit, which seeks to establish equal protections for same-sex couples. In it, six couples in 2010 asked for broad relief for being denied equal treatment under the law, and the case went all the way to the Montana Supreme Court.
In a split opinion, justices said it wasn’t enough to argue gay couples were being treated across the board as second-class citizens, Crichton said. The plaintiffs had to demonstrate specific harms, and he said they are prepared to do so.
“We will demonstrate harm across a good cross-section of law, and we also have a couple new clients that can demonstrate harm similar to what Edie Windsor was showing,” said Crichton of the winning plaintiff in the U.S. Supreme Court case; she had to pay tax on money she inherited when her wife died because the Defense of Marriage Act limited marriage benefits to unions between a husband and wife, and she will now be refunded.
As for those couples who want to get “officially” married? Copple said they have the option to drive to Washington state, where it’s legal, but she isn’t keen on exchanging vows in Spokane.
“I personally want to get married in Montana,” she said.