Same-Sex Benefits Measure Squeaks by Montana Supremes

December 31, 2004 ( - By the narrowest of margins, Montana's Supreme Court says that the Big Sky State's public universities must provide their gay employees with insurance coverage for their domestic partners.

>The majority in the 4-to-3 decision said the decision had nothing to do with the rights of gay couples to marry. But a dissenting judge criticized his colleagues as “radically altering common law marriage in Montana,” according to the New York Times.

>The policy at issue in Montana limited dependent health-care coverage to the employee’s children and to the spouses of married employees.   The policy required proof of marriage – and one option available to heterosexual couples was a sworn statement that they were part of an informal arrangement known as a common-law marriage, which requires that the couple live together and be known in the community as husband and wife.   Couples who signed the affidavit were required to swear that they had “mutually consented and contracted to become husband and wife” and assumed “all the responsibilities and duties which the law attached to such a relationship.”

Marriage Issue Remains

>The court’s majority focused on this option, saying that making it available only to heterosexual couples violated the equal protection clause of the state’s Constitution.   However, Justice Jim Regnier, writing for the majority said, “We have not been asked nor will we address the question of whether Montana’s marriage statutes discriminate against same-sex couples by denying them the right to marry.”  

>That statement notwithstanding, in a concurring decision, Justice James C. Nelson criticized the recent constitutional amendment banning same-sex marriage – one of eleven such state measures on the ballot in 2004, all of which passed the electorate in those states.  “Sadly,” Nelson wrote, “many politicians and ‘we the people’ rarely pass up an opportunity to bash and condemn gays and lesbians despite the fact that these citizens are our neighbors and that they work, pay taxes, vote, hold public office, own businesses, provide professional services, worship, raise their families, and serve their communities in the same manner as heterosexuals.”

Dissenting Voice

>Justice Jim Rice, in dissent, said the majority had radically revised Montana’s marriage laws.   “This case,” Rice wrote, “is about the legal status of marriage in our society, specifically, whether the law still recognizes marriage as the transcendent societal relationship upon which government may base its decisions.”

>Under the decision, Justice Rice continued, “marriage would be rendered simply a societal option without exclusive legal significance.”

“It is the first time that any state high court has ruled that a state has a constitutional obligation to provide domestic partner health-care benefits,” said James D. Esseks, the litigation director of the American Civil Liberties Union’s Lesbian and Gay Rights and AIDS Projects, which represented the two lesbian couples who brought the suit challenging the state’s policy, according to the Times report. “It’s a recognition by the Montana Supreme Court that the government can’t treat gay people differently on economic issues.”

>Sheila M. Stearns, Montana’s commissioner of higher education, said the university system “will do everything we need to do to comply with the decision and the equal protection clause of the Montana Constitution.”

Since the case was decided on state law grounds, a request that the United States Supreme Court hear the case would almost certainly be turned down.