Montana may be one of 11 states that banned gay marriage in November’s election, but it’s the first to order a public agency to offer same-sex partner health benefits if it offers them to unmarried opposite-sex couples. That’s what makes last week’s Montana Supreme Court ruling so significant, says James Esseks, a director for the American Civil Liberties Union, which represented the two lesbian couples who brought the suit against the Montana University System.
“There are many states around the country that have voluntarily agreed to provide same-sex health benefits,” says Esseks, litigation director for the ACLU’s Lesbian and Gay Rights Project. “The idea that it’s not an optional thing, that the states need to do it, is a new and important thing.”
The 4-3 decision, which overturns a 2002 District Court ruling, found that the University System’s health-benefits policy violates the equal protection clause of the Montana Constitution. “Unmarried opposite-sex couples are able to avail themselves of health benefits under the University System’s policy while unmarried same-sex couples are denied the health benefits,” Justice Jim Regnier wrote in the Court’s opinion, which was joined by Justices Jim Nelson, Patricia Cotter and William Leaphart. “These two groups, although similarly situated in all respects other than sexual orientation, are not treated equally and fairly.”
It is a long-awaited vindication for the plaintiffs.
“It feels really good that something I did made a difference and other people will benefit from it,” Carla Grayson says.
Grayson and Carol Snetsinger, both employees of the University of Montana at the time, filed the case with their partners, Adrianne Neff and Nancy Siegel, respectively, because Neff and Siegel couldn’t receive health benefits; Montana’s statewide gay rights group PRIDE joined the suit as a plaintiff. The current policy extends benefits to employees’ partners if the couple is married or if they sign an affidavit of common law marriage—making the benefits unattainable for gay and lesbian couples. The Court didn’t address the question of gay marriage, which voters blocked by passing a constitutional amendment in November. However, the court found the affidavit requirement doesn’t establish a marriage, in part because couples who sign it “may not be legally married under Montana law and may not have legal responsibilities to one another, like a married couple would have to each other.” Thus, the court ruled, the University System offers benefits to unmarried opposite-sex couples while denying them to same-sex couples.
A strong dissent penned by Justice Jim Rice and joined by Justice John Warner says the decision radically alters common law marriage in Montana, and that the affidavit’s validity shouldn’t have been addressed because it wasn’t raised before the District Court. Justice Karla Gray wrote a separate dissent.
The question now is how the University System—and other state entities—will respond to the ruling. The initial reaction from Commissioner of Higher Education Sheila Stearns is accommodating: “Our response is very respectful and interested to understand it fully and to make sure that we figure out the appropriate policy response.” In the coming weeks Stearns and her staff will study how the policy can be changed and make a recommendation to the Board of Regents. The first likely action on the issue will come at the regents’ March meeting. While Stearns said she isn’t sure what alternatives the board may consider—or even if there is more than one—the options are fairly clear: The new policy could extend benefits to committed but unmarried couples regardless of sexual orientation, or it could choose to limit benefits to those who are formally married, which would again exclude gay and lesbian couples.
Nationally, the trend is toward inclusive partner benefits. According to the Human Rights Campaign, a national gay rights group that maintains a database of employers offering domestic partner benefits, the list is growing: 280 universities and colleges; 127 cities and counties; 11 state governments; and nearly 7,000 private companies.
“Employers that want the brightest and best have seen the wisdom of providing access to health insurance for same-sex partners,” says Scott Crichton, executive director of Montana’s ACLU. “It’s not a radical idea to Wall Street. It’s just gonna take time for Montanans to accept it.”
In Missoula, that acceptance is already underway. In 2003, Missoula County changed its policy so that domestic partner benefits don’t depend on marital status. Hal Luttschwager, the county’s benefits plan administrator, says the change went smoothly and that it “wasn’t very complicated or difficult to implement.”
The city is moving more slowly on the issue. At Monday night’s City Council meeting, Ward 3’s Stacy Rye referred the issue to the administration and finance committee, which could vote to study the details of a similar policy change. The issue has been referred more than once in the past, but the Court’s ruling may prompt action this time. Ward 1’s Heidi Kendall says part of what has been holding it up is that “it’s too complicated for normal mortals to take on.” That the county has recently made the change—apparently with ease—will be considered, she said: “It seems pretty clear that either the county shouldn’t be doing it legally, or we should figure out a way to do it.”
While the ruling’s political impacts will reverberate in the months to come, for Grayson and Neff it marks the end of a personal battle that changed their lives. After filing the suit, the couple first received death threats and then their Missoula home was burned. A police investigation never yielded any answers, and the case has since been closed. The couple now lives in Ann Arbor, Mich., and Grayson lectures at the university there—which offers domestic partner benefits. “The ruling is going to have an important impact for many gay and lesbian families in Missoula,” Grayson says. “Given all the things we’ve been through, related to filing the suit, it felt really good to have it resolved in our favor.”