By MATT VOLZ, Associated Press
Six gay couples who are suing Montana for the benefits that married couples have asked the state Supreme Court on Friday to rule that denying those benefits is an unconstitutional violation of their equal protections.
The couples’ attorney, James Goetz, said his clients are not asking to for the right to marry, but they are entitled to make the same decisions about their families’ health care and finances as married couples under the Montana Constitution. The state’s refusal to expressly provide those rights is discriminatory, he said.
The couples are appealing a Helena judge’s dismissal of their case last year after state prosecutors argued that spousal benefits are limited by definition to married couples. A voter-approved amendment in 2004 defined marriage as between a man and a woman.
The Legislature can create a separate class for couples regardless of sexual orientation, assistant attorney general Mike Black told the seven justices. But lawmakers do not have a constitutional mandate to do so, and the couples’ demands are overly sweeping and do not cite the specific laws that would have to be changed.
Oral arguments were held before hundreds of people in a packed theater at the University of Montana. The justices questioned both sides intently, but did not make an immediate ruling.
One of the couples, Kellie Gibson and Denise Boettcher, said they suspect this may just be one more step in a lengthy legal journey that began nearly two years ago, and which may end up in a federal appeals court.
But, they said, they want to ensure that the next generation is protected.
“It’s hope for the future,” Gibson said. “Montana requires equal protection. We’re just citizens of Montana.”
The couples appealed after District Judge Jeffrey Sherlock dismissed the lawsuit filed in July 2010. Sherlock based his ruling in part on the state’s marriage amendment and also said that an order to force state lawmakers to write new laws would violate the separation of powers.
Goetz told the justices on Friday that Sherlock focused on only one of several options the couples requested, and ignored the constitutional questions raised. Goetz said the court does not need to order the Legislature to do anything but can make a simple declaratory statement that to not provide legal benefits to same-sex couples is a violation of their equal-rights protections.
Several justices questioned whether extending spousal benefits to others would gut Montana’s marriage amendment and leave it without meaning. Goetz responded that the amendment would still be significant because the couples still would not be able to marry.
Justice Patricia Cotter asked Goetz what would happen if the court made such a declaration and the Legislature did not act to change the laws.
“We should not presume the Legislature will not do its duty,” Goetz said.
Black argued that the couples’ lawsuit does not name any specific laws that may be discriminatory and the lawsuit would be helped if statutes were named, since different state laws would require different levels of review.
“The scope of the relief being asked here is unprecedented,” Black said.
His argument drew questions from justices who asked whether Black believed each individual law should be litigated. It drew a sharp response from Justice James Nelson, who asked why the burden should be on the couples if they are entitled to equal protection under the Constitution.
Black said he believed a broad ruling such as that being requested by the couples would not reduce the number of lawsuits filed, it would increase it.
Among the rights the lawsuit is seeking:
- Inheritance rights, and the ability to make burial decisions and receive workers compensation death benefits.
- The right to file joint tax returns, claim spousal tax exemptions or take property tax benefits.
- The right to make health care decisions for a spouse when that person cannot.
- Legal protection in cases of separation and divorce, including children’s custody and support.
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