Howard Freidman, Religion Clause
In a 4-3 decision in Donaldson v. Montana, (MT Sup. Ct., Dec. 17, 2012), the Montana Supreme Court rejected a suit by couples in a committed same-sex relationship challenging their inability under Montana law to obtain the same protections and benefits available to heterosexual couples who can marry. The majority said in part:
In the present case … Plaintiffs do not seek a declaration that any particular statute is unconstitutional or that its implementation should be enjoined. Rather, Plaintiffs 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…. Broadly determining the constitutionality of a “statutory scheme” that may, according to Plaintiffs, involve hundreds of separate statutes, is contrary to established jurisprudence.
The majority held that plaintiffs could file an amended complaint more narrowly challenging specific laws.
Justice Nelson filed a strong 108-page dissent, saying in part:
The problem … is that this Court has chosen to punt. And in simply kicking the can down the road, the Court has denied Plaintiffs the dignity, respect, fairness, justice, and equality to which they are entitled—foremost as human beings, and legally under Montana’s Constitution…. Sexual orientation is a big deal to those who demand that their personal religious beliefs, their Bible’s abhorrence, and their partisan ideology concerning homosexuality must apply to everyone else, across the board, no exceptions. But future generations—indeed, most young people today—will not fear, much less honor, the sexual-orientation taboo…. [T]he 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.
Justices Cotter and Wheat filed a brief separate opinion concurring with most of Justice Nelson’s dissent, but refusing to join the portion of the dissent dealing with the Marriage Amendment because plaintiffs did not challenge that amendment. They also disagreed with certain other language in Justice Nelson’s opinion.