Montana Supreme Court Stands with Same-Sex Couples

January 7, 2005

By Lisa Weiner-Mahfuz, Senior Field Organizer

On Dec. 30, 2004, the Montana Supreme Court ruled that the state must provide lesbian and gay employees of the University of Montana System with the option of purchasing employee benefits, including health insurance, for their domestic partners.

In February 2002 the ACLU initiated a lawsuit on behalf of two lesbian couples and PRIDE, Inc., a Montana based Lesbian/Gay/Bisexual/Transgender advocacy organization whose members include employees and domestic partners of employees of the University of Montana System.

One of the plaintiff couples—Carla Grayson and Adrianne Neff—received death threats and their home was burnt to the ground just days after the suit was filed. NOW President Kim Gandy traveled to Missoula, Mt., that year to stand up for the two women and to speak out against the hate crime designed to silence them and others.

Three years later Gandy says: "We applaud the Montana Supreme Court for its commitment to fairness, justice and equality for all. This decision is so important because it extends benefits to families whose access has been denied. This decision is yet another step toward achieving full marriage equality."

The lawsuit argued under amendments to the Montana constitution (which were promoted by Montana feminists in the early 1970s) that it was unconstitutional to deny same-sex couples access to health insurance, disability coverage and other benefits available to married employees as well as committed heterosexual couples that signed an affidavit of common-law marriage.

The court, in a four-to-three decision, ruled that the University System's policy of excluding lesbian and gay employees from equal employment benefits violates the state constitution's equal protection guarantees. "[T]he equal protection clause states that 'No person' shall be denied the equal protection of the laws," wrote Judge James C. Nelson in a concurring opinion.

"The language is clear and unambiguous. 'No person' means simply that—there is no language in this clause excepting out of this guarantee gays and lesbians. At least our society has not come to the position that homosexuals are not even to be considered as persons."

Editor's Note: Montana's Constitution, updated in 1972, opens with a Declaration of Rights and in the 35-point litany of rights, two important sections stand out.

Section 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

Section 10. Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.

Montana feminists, many of them founders of the Montana Women's Political Caucus in 1972, were included on the drafting committee and these women and men were instrumental in writing, promoting and passing this state's modernized Constitution. The equal protection and privacy guarantees were groundbreaking when they including gender and social origin and condition in the list of protected classes and extended the non-discrimination mandate to both public and private entities. The privacy clause was written—and passed —just before the U.S. Supreme Court identified a similar protection in our national Constitution when deciding Roe v Wade.

How nice to have it spelled out and even better to see it work. Congratulations, Montana.