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Same-sex marriage (SSM) in the United States

Part 2: In Montana, from 2014-OCT until now

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In this web site, the acronym "LGBT" refers to the Lesbian,
Gay, Bisexual and Transgender/Transsexual community.

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This topic is a continuation of the previous essay

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wedding rings 2014-OCT-15: ACLU - Montana files Motion for Summary Judgment:

On 2014-OCT-15, the plaintiffs in the Rolando lawsuit filed a Motion for Summary Judgment with federal District Court Judge Brian Morris. That would involve the judge basing his decision on the briefs supplied to him and would avoid having a trial. 10

Jim Taylor, Legal Director at ACLU of Montana said:

"We don’t think there are any material facts in dispute, and so the case can be decided without a trial. The ban on same sex marriage in the Montana Constitution is the same as the bans that were ruled unconstitutional in Idaho, and Nevada. The four couples in our case are situated the same as the couples who won in the Idaho and Nevada cases. We are raising the same issues that were raised in the Idaho and Nevada cases, and we are optimistic that the decisions of the Ninth Circuit in those cases will convince the District Court to rule in our favor."

Elizabeth Gill, staff attorney with the ACLU's Lesbian Gay Bisexual and Transgender Project, said:

"With the Ninth Circuit’s ruling, there is no reason to delay giving loving, committed same-sex couples in Montana the protections and respect that marriage provides. We are looking forward to the day when we can celebrate with them." 11

Unless there are some unique factors involved in this case, District Courts are normally required to follow the precedences established by rulings by the U.S. District Court of Appeals that has jurisdiction over the state.

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2014-OCT-28: Great Falls Tribune positive editorial on marriage equality:

The Tribune Editorial Board posted an editorial about same-sex marriage, saying:

"There is scarcely a more emotional or fractious debate topic than gay marriages or unions. ..."

"One after another, federal appeals courts, including the 9th Circuit that covers Montana, have thrown out gay marriage bans in other states, and Montana’s position will be overturned. Why? Because that stance discriminates against gays, lesbians and others. It is unfair to these folks, regardless of some Americans who disapprove of their sexual orientation. ..."

"U.S. District Judge Brian Morris will hear arguments Nov. 20 on a motion for summary judgment in a case filed this spring by four gay couples. We’d like to see [Montana Attorney General Tim ] Fox [R] at that hearing accept the inevitable and agree with the motion.

It’s time for the state of Montana to quit wasting taxpayers’ money and to accept gay marriage in Montana, even if churches can go their own way on this matter. Some people still want to make political points with this issue, but we say, it’s too late for that. It’s all over.

Montana law should allow people committed to each other, whether straight or gay, to make their relationship legal and lasting." 16

As in most comments by the media, courts and governments on the topic of marriage equality, this editorial assumes that persons who are not lesbian or gay, are heterosexual. They also assume that all same-sex couples are made up of two lesbian or two gay partners. Traditionally ignored are bisexuals who form about 5% of the population and who sometimes enter into same-sex marriages and sometimes into opposite-sex marriages.

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2014-NOV-19: Federal District Court ruling legalizes same-sex marriage in Montana:

District Court Judge Brian Morris, an appointee of President Obama (D), issued his ruling on Wednesday, NOV-19. It was effective immediately and was not stayed. He wrote:

"The Court hereby DECLARES that Montana's laws that ban same-sex marriage, including Article XIII, section 7 of the Montana Constitution, and Montana Code Annotated section 40-1-103 and section 40-1-401, violate Plaintiffs' rights to equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." 17

He also wrote:

"Montana no longer can deprive Plaintiffs and other same-sex couples of the chance to marry their loves. This Court recognizes that not everyone will celebrate this outcome. ... This decision overturns a Montana Constitutional amendment approved by the voters of Montana. Yet the United States Constitution exists to protect disfavored minorities from the will of the majority." 12 "... Equal protection of the laws will not be achieved through indiscriminate imposition of inequalities," 14

The concept of allowing the majority of voters to terminate basic human rights from minority who is disfavored by the majority is often referred to as the "Tyranny of the Majority" or the "Tyranny of the Masses." Preventing this phenomenon was a major concern of the founders of America.

Judge Morris also wrote that children raised by same-sex couples:

"... fare just as well as their peers physically, psychologically, emotionally, cognitively and socially. ... These families, like all of us, want their children to adventure into the world without fear of violence; to achieve all that their talent and perseverance allows without fear of discrimination; and to love themselves so that they can love others. No family wants to deprive its precious children of the chance to marry the loves of their lives." 13,17

Following the same reasoning as many dozen of state and federal courts over the past 16 months, Judge Morris based his ruling on the 14th Amendment of the U.S. Constitution13

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Reactions to the District Court ruling:

  • Attorney General Tim Fox (R) issued a statement saying that he will appeal the court's decision.  13 His oath of office requires him to follow both the Montana state Constitution and the federal Constitution. The 2004 amendment to the former clearly bans same-sex marriage. The 14th Amendment in the latter has been recently interpreted by many dozens of state and federal courts as requiring federal, state, and local governments to treat people equally. This implies that if the state allows opposite-sex couples to marry, it must also allow same-sex couples to marry. Fox cannot follow both Constitutions, and has apparently decided to consider the state constitution to be superior. This is another example of a division in opinion that pervades political thought throughout the United States about whether the country:

    • Is a pure democracy in which the vote of the people carries the ultimate authority. Attorney General Fox seems to take this position. He views the state constitution as amended by the vote of the people in 2004 to rule.

    • Is a constitutional democracy in which the federal constitution carries the ultimate authority. Dozens of judges in state and federal courts have taken this position, and concluded that the Due Process and/or Equal Protection clause of the 14th Amendment to the federal Constitution rules.

Until these two visions of the United States are harmonized through dialogue, conflicts of the type found in Montana over marriage equality are certain to continue. More details.

  • Jim Taylor is the legal director of the American Civil Liberties Union of Montana. He issued a press release, saying:

    "The courts have recognized that there is no legitimate basis on which to deny the right to marry to committed same-sex couples. All Montanans have an equal right to the legal protections and respect that marriage brings. This ruling takes that constitutional principle of equal protection and makes it a reality in Montana." 17

  • Elizabeth Gill, staff attorney with the American Civil Liberties Union's Lesbian Gay Bisexual and Transgender Project issued a statement saying:

    "Montana is no longer left in the cold. It joins the ranks of states where all committed, loving couples can marry."

  • The lead plaintiff, Angie Rolando of Great Falls, emailed the message:

    "Calling Tonya my partner, my significant other, my girlfriend, my perpetual fiancee, has never done justice to our relationship. Now I can look forward to the day when I can introduce Tonya as my wife." 14

  • Among the first same-sex couples in Montana to obtain a marriage license were Amy Wagner, 56, and Karen Langebeck, 48, of Livingston, MY. They have been together for 22 years. When they heard about the court ruling at 2 PM local time, they immediately drove to the county clerk's office.

    Wagner said:

    "Being able to get married and introduce Karen as my wife ? that's a big deal. Now I have a way to describe this relationship that everybody understands." 19

  • Plaintiff Angie Rolando said"

    "Calling Tonya my partner, my significant other, my girlfriend, my perpetual fiancée has never done justice to our relationship. Love won today." 19

Since the ruling was in a federal District Court the Attorney General has appealed the ruling of the District Court to the 9th U.S. Circuit Court of Appeals. The probability of his appeal being successful is miniscule, because the Circuit Court recently found same-sex marriage bans unconstitutional in Alaska, Hawaii, Idaho, and Nevada. It is unlikely that they would find an almost identical ban in Montana to be constitutional. In addition, the 9th Circuit Court is generally regarded as the most liberal of all the circuit courts.

Attorney General Fox's opening arguments are due on 2015-FEB-27. Arguments from the plaintiffs are due on 2015-MAR-30. The Circuit Court is certainly not working with blinding speed in handling this appeal.

There is a possibility that Attorney General Fox will attempt to have a stay to the ruling from the 9th Circuit Court, or from the U.S. Supreme Court. In the meantime, same-sex couples should be free to marry in Montana, the 36th U.S. state to attain marriage equality.

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2014-NOV-22: Clerks in Yellowstone County ask for special dispensation:

Four clerks at Yellowstone County asked that they not be required to issue marriage licenses to same-sex couples. One clerk cited religious reasons; the others cited personal morals and values. Only the clerk who cited a religious objection will be excused from issuing licenses. Yellowstone County Clerk of District Court Kristie Boelter noted that 20 clerks work in her department, so that having one opting out did not present a problem. She said:

"We all take an oath when we enter the Office of the Clerk of Courts to uphold the Constitution of the state of Montana and the Constitution of the United States of America. I have a particular clerk that has religious beliefs that would like to opt out of doing the marriage licenses and we will allow that to happen. I have enough clerks in my office to be able to accommodate that." 15

However, she said that some other counties have fewer clerks on staff and might not be able to follow the same procedure.

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We will post new information here when it becomes available

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Recognition of same-sex unions in Montana","Wikipedia, as on 2014-OCT-23, at: http://en.wikipedia.org/
  2. "Montanans pass ban on gay marriages," USA Today, 2004-NOV-03, at: http://usatoday30.usatoday.com/
  3. "Montana House Bill 590,"Legiscan, 2009, at: http://legiscan.com/
  4. Susan Latta et al. v. C.L. Otter et al., United States Court of Appeals for the Ninth Circuit, 2014-OCT-07, at: http://sblog.s3.amazonaws.com/
  5. Rob Chaney, "Montana equality advocates pursue alternate path to fight same-sex marriage ban," Missoulian, 2014-MAR-14, at: http://missoulian.com/
  6. "9th Circuit Court," Freedom to Marry, 2014, at: http://www.freedomtomarry.org/
  7. Charles Johnson, "Montana AG asks judge to uphold gay marriage ban," Missoulian, 2014-JUL-18, at: http://missoulian.com/
  8. "Complaint for Declaratory and Injunctive Relief," District Court for the District of Montana Great Falls Division, 2014-MAY-21, at: http://www.ypradio.org/
  9. "Montana: Rolando v. Fox," Freedom to Marry, 2014, at: http://www.freedomtomarry.org/
  10. "Montana judge asked to decide on gay marriage," Billings Gazette. 2014-OCT-15, at: http://billingsgazette.com/
  11. "The time for marriage equality in Montana is NOW," American Civil Liberties Union of Montana, 2014-OCT-15, at: http://www.fairisfairmontana.org/
  12. "Federal judge overturns Montana's ban on same-sex marriage," CNN, 2014-NOV-19, at: http://www.cnn.com/
  13. Lauren Raab, "Montana same-sex marriage ban overturned, effective immediately," Los Angeles Times, 2014-NOV-19, at: http://www.latimes.com/
  14. Erik Larson, "Montana Legalizes Gay Marriage, South Carolina to Follow," Bloomberg news, 2014-NOV-20, at: http://www.bloomberg.com/
  15. David Jay, "Billings clerk opts out of issuing same-sex marriage license," KRTV, 2014-NOV-22, at: http://www.krtv.com/
  16. Tribune Editorial Board, "It’s time for Montana to accept gay marriage" Great Falls Tribune, 2014-OCT-28, at: http://www.greatfallstribune.com/
  17. Sanjay Talwani & David Sherman, "Judge strikes down Montana's same-sex marriage ban," KRTV, 2014-NOV-19, at: http://www.krtv.com/
  18. The District Court 18 page ruling can be downloaded in PDF format at: http://bit.ly/

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally posted: 2014-NOV-03
Last updated 2014-NOV-27
Author: Bruce A Robinson
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