The Case of Donaldson, et al. v the State of Montana Is Not Over

Commentary

The Case of Donaldson, et al. v the State of Montana Is Not Over

January 22, 2013 12:30:00 pm

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JURIST Guest Columnist Jon Ellingson of the American Civil Liberties Union of Montana argues that many of Montana’s state statutes are unconstitutional, especially those which confer particular rights and responsibilities upon only heterosexual spouses while simultaneously denying same-sex couples of the same rights and responsibilities…

The politics of Montana present unique challenges to those who are working to protect and advance the rights of gay and lesbian residents.

In 2004, the voters amended the Montana Constitution [PDF] to prohibit same-sex partners from marrying. And while we have routinely elected moderate Democrats in statewide elections, the legislature has recently been firmly controlled by conservative Republicans who are far from friendly to the rights of gays and lesbians. Given this political environment, it may have seemed that little could be done to protect the rights of this important segment of our population. The constitutional amendment foreclosed a challenge to the ban on same sex marriage, and working with the legislature for the enactment of a civil union/domestic partnership act would have been an act of futility.

But we did not give up.

The national American Civil Liberties Union (ACLU), together with the Montana ACLU and statewide gay and lesbian organizations devised a new strategy. We decided to challenge the constitutionality of the numerous state statutes that confer benefits and impose responsibilities on people who are “spouses,” but which deny those benefits and responsibilities to similarly situated same sex partners. These statutes affect a wide range of events that occur for both married couples and same sex partners, but which have different implications depending on whether or not partners are married. For example, a same sex partner is not automatically recognized by health care providers as someone entitled to information about a sick partner or given the right to participate in making healthcare decisions about that partner. Similarly, that partner may be denied bereavement benefits because he or she is not a “family” member. Nor will that person have any right to the property of a deceased partner under the laws of intestate succession.

We filed suit in July 2010 and requested a broad declaration that the statutory structure described above is unconstitutional as applied to same-sex partners. Our plaintiffs are similarly situated to married heterosexuals in all respects except for their gender orientation and consequent inability to marry. We asserted that these couples were being denied the equal protection of the law and that there was neither a rational nor a compelling state interest that could justify the distinction.

The case eventually made its way to the Montana Supreme Court after the lower court granted the state’s motion to dismiss and denied the Plaintiffs’ motion for summary judgment.

We argued our case in front of the Montana Supreme Court in April 2012. On December 17, the judgment of the court was issued. Three of the seven justices agreed with us entirely. They would have declared that all of the statutes that address the rights and responsibilities of spouses should be revised to include same-sex, committed partners. But four of the seven, while not necessarily disagreeing with us in principle, held that, procedurally, we had asked the court to do too much at one time. These justices denied our request for declaratory relief and remanded the case back to the district court. In sending the case back, the Court gave us the right to proceed at the district court level by amending our complaint to list the specific individual statutes that we wish to challenge.

Justice James Nelson wrote a passionate dissent that characterized the judgment as “defeat.” While I appreciate enormously his opinion and commitment to our cause, I cannot agree with him. We are not defeated, but only temporarily diverted from own goal. We will go back to the district court and amend our complaint. We will demonstrate concretely, with reference to specific statutes, the injustice that is suffered by our plaintiffs. And we will prove that in a society that aspires to recognize individual human dignity, that each of us has the right to responsibly direct and control the most intimate aspects of our own lives. In such a society there is no state interest that can justify this statutory discrimination against gays and lesbians.

Jon Ellingson is the Legal Director for the ACLU of Montana. Prior to this position, he was the Assistant Attorney General for Montana.

Suggested citation: Jon Ellingson, The Case of Donaldson, et al. v the State of Montana Is Not Over, JURIST – Hotline, Jan. 22, 2012, http://jurist.org/hotline/2013/01/john-ellingson-donaldson-montana.php

This article was prepared for publication by Theresa Donovan, an assistant editor with JURIST’s professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

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Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.