A Civil Union 

Should Montana recognize same-sex couples as families?

When Glenda arrived at the emergency room after a massive stroke caused her to develop a severe case of pneumonia, her doctors determined that she was no longer competent to make her own medical decisions. Judy, her partner of 27 years, knew that Glenda didn’t want to be kept alive by artificial measures, but because the couple had never signed a living will, her doctors put Glenda on a ventilator, since state law did not recognize Judy as a legal spouse who could make decisions on her behalf.

Although this scenario occurred in an episode of the television series, “ER,” similar legal decisions, and countless others just as heart-wrenching, occur every day throughout the country, and not just in the medical arena. In matters of adoption, student loans, wrongful death claims, tax benefits and family medical leave, to name but a few examples, same-sex couples almost invariably find that the law does not recognize their union or consider partners to be family members.

Montana is no different, as was evident last May when the Montana Board of Regents refused to extend employee benefits to same-sex partners of faculty and staff at the University of Montana. This despite the conclusion by the Regents’ own financial consultants that extending such benefits would have little or no detrimental impact on the university’s finances.

Thus far only one state—Vermont—has legally recognized same-sex unions, but not before the Vermont Supreme Court ruled in Baker v. State that failure to do so would violate the common benefits clause of the Vermont Constitution, which says that “government is, or ought to be, instituted for the common benefit, protection, and security of the people,” not for the advantage of one particular group over another.

Vermont’s civil union law, which took effect July 1 and extends a broad spectrum of rights and responsibilities to same-sex couples, was based on the court’s interpretation of the state constitution rather than the equal protection clause of the U.S. Constitution. Still, says Beth Robinson, the Vermont attorney who successfully argued the Baker case, every state constitution, including Montana’s, has similar language.

“The basic principle at the heart of the court’s decision in Vermont, and the Legislature’s enactment of the civil union law, is the notion that gay and lesbian people are part of our community, they share our common humanity and we ought not to be carving them off from the same basic legal protections that are available to everyone else,” says Robinson. “There’s nothing about this notion that’s unique to Vermont.”

Robinson will be in Missoula Feb. 2 to speak about that case in a presentation at UM entitled, “Marriage Rights for Lesbian and Gay Couples: From Vermont from Montana.”

As Robinson points out, there are differences between the political and social climates of Vermont and Montana—and similarities as well. Even before the Vermont Legislature enacted the civil union law, considered one of the most divisive political battles in that state’s history, Vermont was already hospitable for gay and lesbian couples. Gays and lesbians in Vermont enjoy more comprehensive legal protections than in most states, including tough anti-discrimination and hate-crime protections. Likewise, all state employees and their same-sex partners are entitled to domestic partner benefits, a right yet to be realized in Montana. (Gov. Marc Racicot’s 1998 executive order to include sexual orientation in the state’s non-discrimination employment policy, which took effect shortly before he left office, did not address same-sex partner benefits.)

However, Montana and Vermont share a predominantly rural character with deeply held religious convictions. Interestingly, Robinson says that Vermont’s religious organizations played a major role in the grassroots effort to educate and organize the public about the civil union law, with some of its strongest opponents—and proponents—coming from the faith community.

“We actually found ourselves in the Legislature with the Methodist bishop and the Episcopal bishop testifying in support of marriage rights for same sex couples, while the Catholic bishop testified against any recognition of same-sex couples,” says Robinson. “That day it was sort of the battle of the bishops.”

Like Montana, Vermont’s economy is heavily dependent upon tourism, which had civil union opponents fearing that the new law might scare away visitors. But according to testimony from the Vermont Board of Tourism, the law has had no significant impact on the tourism industry. If anything, says Robinson, more than 1,000 couples have since traveled to Vermont to join in civil unions.

The timing of Robinson’s visit is apropos, just as about a half-dozen members of the UM faculty and staff prepare to file a lawsuit against the Board of Regents for last May’s decision on same-sex partner benefits. According to Casey Charles with UM’s Outfield Alliance, a coalition of gay, lesbian, transsexual and transgendered faculty and staff, less than one percent of the more than 7,000 university employees statewide—perhaps 12 to 17 people, he estimates—would be affected.

Nationally, at least 140 colleges and universities have already granted benefits to same-sex couples, including state universities in Alaska, North Dakota, Washington, Iowa, Colorado and Oregon.

“It’s been tested, it’s cost-effective and it’s legally sound in other states,” says Charles. “Since there’s no fiscal reason and no legal reason, ultimately the [Regents’] determination based on politics alone is irrational and not a basis for the denial of equal protections.”

Still, even with the recent success in Vermont, as well as policy changes among Montana’s nearest neighbors, Montana’s gay and lesbian community recognizes that its battle for legal equality will not be won overnight.

“Sometimes when it comes to protecting gays from discrimination, the wheels can move very slowly,” says Karl Olson of PRIDE, a Helena-based gay and lesbian rights group. “We’ve started that journey in Montana. Who knows what the final destination will be?”

”Marriage Rights for Lesbian and Gay Couples: From Vermont to Montana” will be held at 7 p.m. in UM’s University Center rm. 330.

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