Yesterday, a sharply divided Montana Supreme Court turned aside a lawsuit by several same-sex couples “complaining that they are unable to obtain protections and benefits that are available to similarly situated different-sex couples who marry under State law.” Although this is a setback for gay rights, it is not clear that this setback will be permanent. Rather than challenge a particular provision of law, the plaintiffs in this lawsuit “seek a general declaration of their rights and seek orders enjoining the State to provide them a ‘legal status and statutory structure’ that protects their rights.” In essence, yesterday’s order tells the plaintiffs to be more specific in explaining just how their rights have been violated — and which specific statutes have violated them — and then come back an try again.
Three of the court’s seven justices dissented, in opinions indicating that they would extend equal benefits to gay couples right now, rather than wait for another round of litigation. One justice, Justice Jim Rice, wrote a separate concurring opinion indicating that he rejects extending equal rights to gay couples outright. So, with three votes on record in support of gay rights and only one opposed, the plaintiffs appear to be in a strong position if their case reaches these same justices again.
The most significant impact of yesterday’s order, however, is that it ensures that this issue will not reach the same panel of seven justices again. Justice James Nelson will retire from the bench this month. And his 119 page dissenting opinion leaves no doubt that he is the court’s staunchest supporter of equality:
There are many who believe that gays and lesbians are second-class citizens; that they are morally inferior; that they are objects worthy of societal scorn, derision, and hatred; that they may be reviled and demonized on the floor of the Legislature with impunity; that they may be discriminated against by local governments; that they may be bullied in their schools and workplaces; and that they are not entitled to the same rights accorded to heterosexuals. Such views parallel those held by many—even the United States Supreme Court—regarding racial minorities and women a century ago. . . . We legitimize those similar, pernicious views about gays and lesbians when, as the Court does today, we abrogate our solemn obligation to declare and uphold the constitutional rights of all Montanans—especially those among us who have been subjected to majoritarian and state-imposed hatred and discrimination.
My abiding belief is that no person—no human being—in our society should be reviled, demonized, and discriminated against for being gay, lesbian, or bisexual, any more than they should be treated in that fashion for being Native American, Presbyterian, female, disabled, poor, or Irish. No person should be the object of state-sanctioned bigotry simply for being born homosexual or for choosing to love another person of the same sex. No person should be made to suffer the deprivation of their civil rights and liberties because of the religious beliefs and doctrines of others—doctrines that are now constitutionalized in the Marriage Amendment and enforced by Montana’s government. And no person should be stripped of her or his inviolable human dignity based on sexual orientation. Ever!
Although Nelson deeply regrets the court’s decision to put this question off until another day, he ends his opinion on a hopeful note: “the taboo will die because the scare tactics, propaganda, and misinformation of those who would hang on to the maledictions and stereotypes have proven to be so patently false, malicious, and absurd. Most decent people just hate being lied to. Indeed, a not-too-distant generation of Montanans will consign today’s decision, the Marriage Amendment, and the underlying intolerance to the dustbin of history and to the status of a meaningless, shameful, artifact.”