The battle for legal recognition of same-sex marriage in the state of Montana took a disappointing turn Monday. In a 4-3 decision the Montana Supreme Court refused to find that as a matter of law same-sex couples are entitled to equal recognition and protection rejecting as “overly broad” a request that gay couples be guaranteed the same benefits as married couples.
The legal challenge came in the wake of a voter-approved amendment in 2004 that defined marriage as between a man and a woman. Six gay couples’ sued, asking the court to rule that since they couldn’t marry in the state same-sex couples be guaranteed the same benefits as married couples. In defending against the lawsuit, prosecutors argued that spousal benefits are limited by definition to married couples thanks to the amendment, and the lower court, relied on that amendment in dismissing the legal challenge. This means, in effect, the courts refused to say outright that defining marriage as a union between a man and a woman violates the Constitution. And by legal reasoning standards, by not saying excluding same sex couples from the definition of marriage is discriminatory, the court suggests this exclusion is just fine.
The plaintiffs wanted the court to rule that same sex couples would be guaranteed such things as inheritance rights, the ability to make burial decisions and receive workers compensation death benefits, the right to file joint tax returns, claim spousal tax exemptions or take property tax benefits. Others include the right to make health care decisions for a partner when that person is incapacitated, and legal protection in cases of separation and divorce, including children’s custody and support. In effect, they sought a ruling that their unions would be treated with equal respect and protection as opposite-sex marriages. The court flat out refused to do so.
If there is a silver lining in the ruling, and there is, it is that the court left open the possibility of future legal challenges that would in effect chip away at institutional discrimination of same-sex couples. “It is this Court’s opinion that the plaintiffs should be given the opportunity, if they choose to take it, to amend the complaint and to refine and specify the general constitutional challenges they have proffered” wrote Montana Supreme Court chief justice Mike McGrath. This means the plaintiffs have to start from the beginning, and challenge piece-by-piece specific laws as discriminatory. This is expensive. And time-consuming. And the kind of precedent that can take decades to create. But it’s how, unfortunately, many of our civil rights struggles have evolved through our court system in the absence of bold federal legislation designed to strike right at the heart of the discrimination. Absent such bold, affirmative legislation from Congress, we may be witnessing the same tragectory for gay rights.