Gay couple rights lawsuit headed to high court

HELENA — The American Civil Liberties Union said Thursday it will ask the Montana Supreme Court to overturn a lower court's rejection of a lawsuit that sought to extend to gay couples the same legal protections as married couples.

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 offer the legal rights to the gay couples.

A District Court judge earlier this year rejected the claim. Judge Jeffrey Sherlock cited the state's voter-approved constitutional definition of marriage as between a man and a woman in his reasoning, saying it played into his decision that the "requested relief constitutes an impermissible sojourn into the powers of the legislative branch."

The gay couples, rather than seeking the right to marry, 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 opposed the ACLU filing — arguing that the issue should be left to the Legislature instead of the courts. The state argued that the Legislature is free to create a new, separate class for couples regardless of sexual orientation if the elected lawmakers want to do so.

Two states, Vermont and New Jersey, have seen courts order the states to allow the common benefits and protections of marriage to gay couples even if they are not allowed legally to marry. But the District Court in Montana noted in its decision that neither state had a constitutional marriage provision like Montana.

Court intervention would require the judicial branch to order the Legislature to draw up new laws, a much bigger step than declaring an existing statute unconstitutional.

The ACLU argued in the court case, filed on behalf of several gay couples, that the marriage amendment does not preclude other rights. It said its claims are based on "fundamental issues of privacy and equal protection that need to be resolved by Montana's highest court."

"The couples we represent knew there might be some bumps along the way, but they are committed to seeing this case through so that they and all same-sex couples and their families can get the protections they need but are currently denied to them in Montana," ACLU of Montana lawyer Betsy Griffing said in a statement.

"Our constitution requires that the state treat couples in committed relationships fairly and equally regardless of whether they are same-sex or different-sex couples."