ACLU, Gay Couples Sue Montana for Discrimination

by Kilian Melloy
Friday Jul 23, 2010

The state of Montana constitutionally denies gay and lesbian families access to marriage--but it also guarantees the state's citizens rights to privacy, dignity, equal protection, and due process. It's on those grounds that seven same-sex families, together with the Montana branch of the American Civil Liberties Union (ACLU), have brought suit against the state, seeking the establishment of state-recognized domestic partnerships.

The suit, Donaldson and Guggenheim v. State of Montana, was filed July 22. Profiles of the seven same-sex families behind the suit can be viewed at the ACLU's web page.

"The goal of this lawsuit is ensure that same-sex couples are able to protect their families with the same kind of legal protections that opposite-sex couples are offered through marriage," says an ACLU news release issued the same day as the suit was filed. The release goes on to note that the form of legal recognition the seven families seek already exist "in several other states."

"Mary Anne and I are part of a family unit, bonded by love and mutual respect and a desire to share in a close relationship that benefits not only us, as partners, but our wider family and the entire community," Jan Donaldson said of her 27-year committed spousal relationship to Mary Anne Guggenheim. "We depend on one another, in all aspects of our life together. We want to be able to do that with grace and dignity and to feel secure that our relationship will be respected. We want our relationship to be recognized for what it clearly is--a loving commitment of responsibility worthy of security and protection by the state."

The release notes that, "under Montana law, it is possible for same-sex couples to be barred from visiting their partners in the hospital and to be left out of conversations about emergency medical care. Montana inheritance laws refuse to recognize same-sex couples, and can leave surviving partners with nothing if their partners die without valid wills." Adds the release, "Today's lawsuit seeks a mechanism such as the domestic partnership laws adopted by several other states to provide similar protections for committed same-sex couples."

"It's unfair for same-sex couples who have made commitments and formed families to be treated by the state like legal strangers," ACLU of Montana Legal Director Betsy Griffing said. "Lesbian, gay and bisexual Montanans are valuable and productive members of society who should be treated fairly if their partner is in the hospital or dies without a will."

"Denise has stood with me through 56 brain surgeries and over 300 spinal taps, yet to Montana we're nothing more than strangers," said Kellie Gibson, who, together with her life partner Denise Boettcher, has two children. "Knowing we have legal protections for our family sure would make it easier on both of us the next time I have a medical crisis."

"And there won't be any protest from defenders of marriage because these same-sex couples aren't seeking the right to wed," wrote columnist Dan Savage at The Stranger that same day. "All they're demanding is that the state of Montana recognize domestic partnerships. So, again, we can expect no protests from the defenders of marriage... right? And if defenders of marriage should protest or attempt to block domestic partnerships for same-sex couples--like they did in Hawaii--all the folks who are constantly urging gays and lesbians to be reasonable and settle for civil unions or domestic partnerships will loudly condemn the defenders of marriage for being unreasonable... right?"

Legal Precedents

At least one Montana municipality has already extended legal consideration to its LGBT residents. Missoula, the state's second-largest city, approved an ordinance in April that bans discrimination based on real or perceived sexual orientation and gender identity.

And the state's courts have also established precedent in the area of same-sex families. Last year, Montana's supreme court upheld the parental rights of Michelle Kulstad, the former long-term life partner of Barbara Maniaci, the biological mother of the children that the two women were rearing until their relationship ended. Maniaci sought to cut Kulstad out of the children's' life, only for the courts to rule in Kulstad's favor. Maniaci then married a man and appealed, and the case ended up before the state's Supreme Court, where Kulstad's rights were affirmed in a six-to-one near-unanimous ruling.

Critics condemned the ruling as opening a door that would allow "third parties" to lay claim to the offspring of "fit parents," but the long-term nature of the women's earlier pairing, as well as the pre-existing bond between the non-biological mother and the children, were crucial elements in the case. Said Kulstad's attorney, Susan Ridgeway, "[Kulstad is] the second parent of these children; she's not the fifth boyfriend of the parent." Added Ridgeway, "She made a commitment to be a parent, and she's proven that she's had a parent-child relationship with the children."

The court's lone dissenter, Justice Jim Rice, echoed the arguments made by the Alliance Defense Fund's attorney, writing in a dissent that, "Now, even parents who are fit and capable ... are potentially subject to the claims of third parties for rights to their children." Predicted Justice Rice, "Consequences of geometric proportion will fall in the future upon many fit parents."

Justice James Nelson wrote a concurrence in which he spoke out against homophobia. "Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry," wrote Nelson. "Lesbian and gay Montanans must not be forced to fight to marry, to raise their children and to live with the same dignity that is accorded heterosexuals."

Justice Nelson also stated his conviction "that homosexuals are entitled to enjoy precisely the same civil and natural rights as heterosexuals, as a matter of constitutional law."

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


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