Last year, the American Civil Liberties Union filed the lawsuit on behalf of the gay couples, arguing that the guarantees in the Montana Constitution of equal protection, privacy and dignity should require the state to afford the legal rights to the gay couples. The ACLU said it plans to appeal the case to the Montana Supreme Court.
The gay couples weren't asking for the right in the lawsuit to marry, which the Montana Constitutional defines as between a man and a woman. Rather they wanted to be able to make burial, health care and other decisions, while enjoying such benefits as jointly filing taxes.
The attorney general's office has countered in court that Montana can't extend spousal benefits to gay couples because those benefits are limited to married couples by definition since Montana voters in 2004 approved the marriage amendment.
The state argued in court that the Legislature is free to create a new, separate class for couples regardless of sexual orientation. It argued such a policy choice should be made by the state, and not the courts.
District Judge Jeffrey Sherlock noted in a decision dated Tuesday that the state government grants its gay employees the same employment-related benefits for their same-sex partners. And he pointed out that the Montana Supreme Court has previously decided that that the state university system's past policy of barring such benefits to gay employees violated the equal protection provisions of the Montana Constitution.
But the new case sought to go farther.
Sherlock pointed to similar cases in Vermont and New Jersey that successfully ordered the states to allow the common benefits and protections of marriage to gay couples, even if they are not allowed to get legally married. But Sherlock said neither state had a constitutional marriage provision like Montana.
The judge said, despite sympathy for the plaintiffs, that it would be an inappropriate breach of separation of powers for him to order the Legislature to enact "a domestic partnership or civil union arrangement" as sought by the gay couples. He said forcing the lawmakers to draw up new laws goes much farther than asking him to declare one of their statutes unconstitutional.
"This court finds plaintiffs' proposal, although appealing, to be unprecedented and uncharted in Montana law," Sherlock wrote.
Sherlock said the marriage amendment alone wouldn't prevent the court from extending the relief, but he argued it does play into his decision that the "requested relief constitutes an impermissible sojourn into the powers of the legislative branch."
Sherlock said the information provided voters deciding the state's amendment defining marriage as between a man and woman were told by both sides that it went beyond just a legal designation.
"Indeed, the proponents and opponents seem to both acknowledge that the marriage amendment would have something to do with benefits and obligations that relate to the status of being married," Sherlock said. "Thus, it appears that both the proponents and opponents of CI-96 felt that that constitutional provision bore on some of the very issues now presented to this court."
The ACLU argues that the marriage amendment does not preclude other rights.
"We are obviously very disappointed in the judge's decision," said ACLU of Montana legal director Betsy Griffing. "We are evaluating all of our options. We recognize that this is a long road. We certainly don't consider our advocacy on this point to be over."