In 133 pages of opinion, consisting mostly of the dissent, the Montana Supreme Court rejected claims brought by six lesbian or gay couples seeking to establish marriage equivalent rights in a state where the constitution forbids marriage equality.
In Donaldson v. State [2012 WL 6587677], plaintiffs argued that the state must provide same-sex couples with some mechanism that would produce an equivalent set of rights and duties, presumably along the lines of a civil union. Montana is one of 30 states where the constitution blocks any strategy other than voter repeal or a U.S. Supreme Court ruling for obtaining gay marriage rights.
The state supreme court declined to do so, on the ground that the plaintiffs did not specify particular statutory provisions they were challenging, and instead argued that the state’s “statutory scheme of benefits and obligations” violated equal protection. Rather than dismiss the complaint, however, the court gave plaintiffs leave to amend their complaint to identify particular laws being challenged.
Judging from the line-up of justices, this effort could ultimately succeed. The three dissenters all would have granted the relief as originally sought, so certainly could be counted on to rule in favor of a marriage equivalent system if and when the case returns to the state’s highest court. Only one of the four justices in the majority wrote separately to say that the both marriage and its component rights and duties were and should be controlled by the 2004 amendment. If any of the other three in the majority are won over by a more specific complaint, plaintiffs would prevail. A success in this case might suggest a strategy for other states among the 30 that have amended their constitutions.
The case is being litigated on state constitutional grounds, so there is no risk that it can be taken to the U.S. Supreme Court.