On April 13, Montana Supreme Court Justice James C. Nelson grilled the state's assistant attorney general, Michael Black, about Black's contention that homosexuals in the state should not have access to the same legal protections afforded to married heterosexuals.
"Do you believe that committed same-sex couples are entitled to equal protections, do you believe that?" Nelson asked.
"It would depend on the circumstances, your honor," Black answered. "They may or they may not."
Black, on behalf of the state Department of Justice, is defending the state against a lawsuit by six gay and lesbian couples. The suit, Donaldson and Guggenheim v. the State of Montana, alleges that Montana legislators are unlawfully denying homosexuals domestic partnership rights, including those of inheritance, equal tax benefits and the power to make financial decisions for their partners.
The exchange with Nelson took place during a special hearing of the Montana Supreme Court at the University Theatre in Missoula. It drew a crowd of local and state lawmakers, gay activists, law students and U.S. Supreme Court Clerk William Suter. The case could affect the lives of thousands of gay couples in Montana.
Last year, Helena District Judge Jeffrey Sherlock dismissed the lawsuit. His rationale centered largely on what's called the Separation of Powers Doctrine, which holds that judges are legally mandated to interpret laws, not make them. Lawmaking is left to the legislature, Sherlock said. "For this court to direct the legislature to enact a law that would impact an unknown number of statutes would launch this court into a roiling maelstrom of policy issues without a constitutional compass." The plaintiffs appealed.
Black echoed Sherlock when arguing on behalf of the state last week. He said the suit is too broad. Plaintiffs aren't asking that a specific law be overhauled, but rather hundreds of them. "The scope of relief being sought here is unprecedented," he said. "This is a statutory smorgasbord."
Black added that Montanans had their say on this issue in 2004, when 67 percent of voters approved an amendment to the state constitution which limits marriage to one man and one woman. "Certainly that constitutional amendment is entitled to some weight here," he said. "They really are attacking in substance the marriage act."
Attorneys for both sides agreed, however, that the act does not preclude the legislature from granting domestic partnership benefits.
Montana ACLU staff attorneys and Jim Goetz of Bozeman are representing the plaintiffs. In response to judicial overstep concerns, Goetz pointed out that there's a precedent for state courts to order lawmakers to craft mechanisms like those now sought in the Donaldson case. In 1999, the Vermont Supreme Court unanimously found that prohibitions against same-sex partnerships violated that state's constitutional protections. Justices ordered Vermont's lawmaking body to provide a mechanism for gays to achieve partnership rights and responsibilities. In 2000, the Vermont Legislature was one of the first in the country to grant rights to gay partnerships.
Still, Goetz told the Montana justices that the Donaldson plaintiffs are not asking justices to enact laws. What they're requesting is a "declaratory judgment," or a declaration from the court that says denying partnership benefits to same sex couples violates equal protections. "The order does not have to be complicated," he said.
University of Montana political science professor James Lopach told the Independent after the hearing that such a declaration would guide the legislature but is non-binding.
With such an order, "the court declares the rights of the parties," Lopach said. "They're building a legal structure and this is the foundation."
Typically, such judgments are complied with voluntarily. However, the Montana Legislature has long resisted gay rights legislation. The state's Republican Party, a strong presence during the 2011 legislative session, aims to re-criminalize gay sex. The state GOP's 2010 platform plank on the issue says, "We support the clear will of the people of Montana expressed by legislation to keep homosexual acts illegal."
"If the next legislature is similar to the recent past, then the legislature would ignore a declaratory judgement," Lopach says.
Justice Patricia Cotter alluded to that history when she asked Goetz during last week's hearing if he felt the legislature would be receptive to judicial prodding. "If we enter the declarations that you ask us to enter, and the legislature does not act, what then?"
Goetz told her that the legislature should first be given a chance to respond to a court order for declaratory relief. "This court has a whole broad range of powers including injunctive powers, if necessary," Goetz said. "But that's a long way off. We should not presume the legislature would not do its duty."
Lopach noted that the justices spent much of their time inquiring about how to remedy the alleged constitutional violations rather than substantiating whether such violations exist. His money is on a win for the plaintiffs, he says. "I would be surprised if the Montana Supreme Court limited itself to the declaratory relief."
The court is slated to rule this summer.