New plan of attack

The Montana Supreme Court weighed in on domestic partnership benefits for same-sex couples by kicking a portion of the lawsuit back to a lower court. In the wake of the decision, the Montana ACLU is planning a new means of attack.

“It’s a detour. It’s not a defeat,” says ACLU Legal Director Jon Ellingson.

In 2010, the ACLU filed the lawsuit, Donaldson and Guggenheim v. State of Montana, on behalf of six same-sex partners who allege that Montana legislators unlawfully deny gay people domestic partnership rights, including those of inheritance, equal tax benefits and the power to make financial decisions for their partners.

On appeal from district court, the ACLU, along with cooperating attorney Jim Goetz of Bozeman, requested the Supreme Court grant what’s called a “declaratory judgement,” or a declaration that says denying partnership benefits to same-sex couples violates equal protections.

In a 4-3 decision, the court found the ACLU’s request too sweeping. The majority believes that granting the request would only create uncertainty among state lawmakers. “A broad injunction and declaration not specifically directed at any particular statute would lead to confusion and further litigation,” Chief Justice Mike McGrath wrote.

In a scathing 109-page dissent, Justice James Nelson, who retires at the end of this year, accused his colleagues of punting on the issue and, in doing so, sanctioning discrimination.

“The notion that they must ‘specifically identify’ and ‘specifically analyze’ each of the ‘innumerable’ statutes is, in reality, nothing more than a straw-man argument that the Attorney General has invented, and this Court has adopted, to avoid a socially divisive issue,” Nelson wrote.

The court majority said that the plaintiffs may identify specific laws and take the case back to the district court—and that’s what the ACLU plans to do, Ellingson says. “We’ve got some work to do to decide strategically which (statutes) we think best illustrate the injustice of the disparate treatment.”

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