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Montana AG moves to dismiss same-sex marriage lawsuit

By Drew Singer

[JURIST] Montana Attorney General Steve Bullock [official profile] has filed a motion to dismiss [text, PDF] a lawsuit [complaint, PDF] by seven same-sex couples seeking rights equal to married couples. The lawsuit, filed in July [JURIST report] by the American Civil Liberties Union (ACLU) [advocacy website] alleges that the state has limited the couples' decision-making powers regarding their health care and finances. The complaint argues that the Montana Constitution says "no person shall be denied equal protection under the laws," but the state legislature has failed to pass legislation in various fields to protect same-sex couples. It requests that the court order the state to offer "same-sex couples and their families a legal status and statutory structure that confers the protections and obligations that the State provides to different-sex couples who marry, but not the status or designation of marriage." Bullock's motion notes several protections that same-sex couples do receive and argues that the courts cannot deliver the requested relief:

Lesbian, gay, and bisexual Montanans have suffered social stigma and discrimination, but Plaintiffs do not allege any state action that has caused these effects. ... By definition -- a definition contained in the Montana Constitution -- these spousal benefit laws do not apply to them. Instead of challenging any law now on the books, Plaintiffs ask the Court to require the enactment of a new law extending spousal benefits beyond the constitutional definition of marriage. Because this relief requires the exercise of the legislative rather than the judicial power, and because spousal benefits do not violate the Montana Constitution, Plaintiffs have failed to state a claim upon which relief can be granted.

The motion also argues that the plaintiffs aren't receiving protections because they are gay, but because they aren't legally married, and they receive the same rights as all other non-married Montanans.

On Tuesday, the Gay and Lesbian Advocates and Defenders (GLAD) [advocacy website] and the ACLU filed separate federal lawsuits [JURIST report] challenging the federal Defense of Marriage Act (DOMA) [text]. Last month, the US Department of Justice filed two notices of appeal [JURIST report] in the US District Court for the District of Massachusetts, defending DOMA. In July, Judge Joseph Tauro ruled that the DOMA definition of marriage as between a man and a woman is unconstitutional [JURIST report] because it interferes with the states' right to define marriage. In March, the District of Columbia joined Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports] in legalizing same-sex marriage [JURIST news archive], extending the full benefits available at the state level to same-sex spouses.

Full post as published by JURIST - The Paper Chase on November 11, 2010 (boomark / email).