HELENA – The state of Montana asked a federal judge Thursday to dismiss a lawsuit filed by four gay and lesbian couples challenging Montana’s constitutional ban on same-sex marriage.
Attorney General Tim Fox asked U.S. District Judge Brian Morris of Great Falls to rule favor of the state and uphold the constitutional amendment passed by Montana voters in 2004. The ban says: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.”
In May, four same sex-couples filed a lawsuit challenging Montana’s constitutional ban. Three of the four couples have been married in other states and want their marriages recognized here, while the fourth couple wants to get married in Montana.
Filing the lawsuit were Angie and Tonya Rolando of Great Falls, Shauna and Nicole Goubeaux of Billings, Ben Milano and Chase Weinhandl of Bozeman and Sue Hawthorne and Adel Johnson of Helena.
They argued that the ban deprives same-sex couples of “the freedom and dignity afforded to other Montanans, but also the legal protection, duties and benefits that marriage affords to the welfare of society and individual happiness.”
The couples named Fox, state Revenue Director Mike Kadas and Cascade County Clerk of Court Faye McWilliams as defendants, in their official positions.
Mark W. Mattioli, Fox’s chief deputy attorney general, and Jon Bennion, his deputy attorney general, wrote the state’s answer to the lawsuit.
They said a number of the claims made by the same-sex couples in their lawsuit consisted of arguments, legal claims or conclusions of law that don’t require a response and therefore are denied.
At one point, the state said the U.S. Supreme Court, in its 2013 ruling in United States v. Windsor, reaffirmed that “definition and regulation of marriage” is “within the authority and realm of the separate states.”
In another section, the state attorneys wrote: “Defendants (the state and local officials), however, affirmatively allege that plaintiffs cannot state a claim based upon sex discrimination because men and women, regardless of sexual orientation or preference, are treated the same. Neither men nor women can marry persons of the same gender.”
In another, the state attorneys wrote that “Montana’s recognition of marriage as between one man and one woman does not constitute or impose an unconstitutional stigma or second-class citizenship on persons in same-sex relationship.”
Same-sex marriage is now legal in 19 states and the District of Columbia. Bans have been overturned in 12 states, where appeals are in progress.
Amy Cannata, spokeswoman for ACLU of Montana, said she was disappointed, but not surprised, that Fox asked the federal court to uphold Montana’s ban on same-sex marriage. She said Fox earlier had signed a friend-of-the-court brief opposing an attempt to overturn Nevada’s ban.
Some state attorneys general have chosen not to defend lawsuits challenging state bans on same-sex marriages, she said.