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Jan Donaldson and Mary Anne v. State of Montana

December 17, 2012

JAN DONALDSON AND MARY ANNE GUGGENHEIM, MARY LESLIE AND STACEY HAUGLAND, GARY STALLINGS AND RICK WAGNER, KELLIE GIBSON AND DENISE BOETTCHER, JOHN MICHAEL LONG AND RICHARD PARKER, NANCY OWENS AND MJ WILLIAMS, PLAINTIFFS AND APPELLANTS,
v.
STATE OF MONTANA, DEFENDANT AND APPELLEE.



The opinion of the court was delivered by: Chief Justice Mike McGrath

Chief Justice Mike McGrath delivered the Opinion of the Court.

ORDER

¶1 Plaintiffs are individuals from a variety of professional backgrounds who are in committed same-sex relationships. In 2010 they sued the State of Montana, complaining that they are unable to obtain protections and benefits that are available to similarly-situated different-sex couples who marry under State law. Plaintiffs expressly do not challenge Montana law's restriction of marriage to heterosexual couples, do not seek the opportunity to marry, and do not seek the designation of marriage for their relationships. They contend however that there is a "statutory structure" in Montana law that prohibits them from enjoying "significant relationship and family protections and obligations automatically provided to similarly-situated different-sex couples who marry."

¶2 Plaintiffs contend that this statutory structure interferes with their rights under Article II of the Montana Constitution, including their rights to equal protection, due process, and the rights to privacy, dignity and the pursuit of life's necessities. They seek a declaration that the State's failure to provide them access to the statutory scheme available to different-sex couples denies them the rights guaranteed by Article II. They seek an injunction prohibiting the State from continuing to deny them access to the statutory scheme.

¶3 The District Court denied Plaintiffs' motion for summary judgment and granted the State's motion to dismiss under M. R. Civ. P. 12(b)(6). The District Court noted that Plaintiffs do not seek a declaration that any specific statutes are unconstitutional. The District Court concluded that granting the relief sought-ordering the Legislature to enact a statutory scheme to address Plaintiffs' goals of achieving equal treatment-would be an inappropriate exercise of judicial power. Doing so, according to the District Court, would run afoul of the separation of powers required by Article III, section 1 of the Montana Constitution.

¶4 The District Court was also concerned that granting broad declaratory relief would likely impact a large number of statutes in potentially unknown and unintended ways. In the District Court proceedings Plaintiffs parenthetically listed a number of Montana statutes that they contend are within the "statutory scheme" that denies them equal access to rights and responsibilities. The District Court concluded, however that "what plaintiffs want here is not a declaration of the unconstitutionality of a specific statute or set of statutes but rather a direction to the legislature to enact a statutory arrangement." The District Court determined that while this had some appeal, such relief was "unprecedented and uncharted in Montana law." The District Court concluded that "the proper ways to deal with Plaintiffs' concerns are specific suits directed at specific, identifiable statutes." Plaintiffs appealed after the District Court denied their motion to alter or amend.

¶5 On appeal Plaintiffs argue, without reference to specific statutes, that they are "excluded from the statutory scheme of benefits and obligations the state has associated exclusively with marriage." Plaintiffs contend that a strict level of review is required, but that even at the lowest levels of constitutional scrutiny the State cannot show a legitimate governmental interest in the current statutory scheme, and that it violates their rights under Article II of the Montana Constitution. Plaintiffs contend that the State excludes them from access to unnamed benefits and obligations in violation of Montana's constitutional rights of privacy, dignity and the pursuit of life's basic necessities. Plaintiffs contend that they are entitled to a declaratory judgment and to injunctive relief to redress the violation of their rights. Plaintiffs contend that while they can obtain relief without a judicial order requiring the Legislature to act, such an order is a remedy well within established constitutional bounds.

¶6 Plaintiffs ask that the judgment of the District Court be reversed and the case remanded to grant Plaintiffs' motion for summary judgment as well as a declaratory judgment and injunction. We affirm in part, reverse in part and remand for further proceedings.

¶7 As a general rule, this Court will not disturb a district court's determination that declaratory relief is not necessary or proper unless the district court abused its discretion. Miller v. State Farm, 2007 MT 85, ¶ 5, 337 Mont. 67, 155 P.3d 1278 (citing Northfield Ins. v. Mont. Assoc. of Counties, 2000 MT 256, ¶ 8, 301 Mont. 472, 10 P.3d 813). We review a district court's interpretation of law to determine whether the interpretation is correct. Miller, ¶ 5.

¶8 In the past Montana courts have held specific statutes unconstitutional, and in some cases have directed the Legislature to act to comply with specific duties. Helena Elementary School Dist. No. 1 v. State, 236 Mont. 44, 769 P.2d 864 (school funding); Snetsinger v. Mont. Univ. System, 2004 MT 390, 325 Mont. 148, 104 P.3d 445 (provision of employment benefits). In the present case, however, Plaintiffs do not seek a declaration that any particular statute is unconstitutional or that its implementation should be enjoined. Rather, Plaintiffs seek a general declaration of their rights and seek orders enjoining the State to provide them a "legal status and statutory structure" that protects their rights.

¶9 We agree with the District Court that Plaintiffs' requested relief exceeds the bounds of a justiciable controversy, Gryczan v. State, 283 Mont. 433, 442, 942 P.2d 112, 117 (1997), and decline to provide the declaratory relief requested. It is the opinion of this Court that the broad injunction and declaratory judgment sought by Plaintiffs would not terminate the uncertainty or controversy giving rise to this proceeding. Instead, a broad injunction and declaration not specifically directed at any particular statute would lead to confusion and further litigation. As the District Court aptly stated: "For this Court to direct the legislature to enact a law that would impact an unknown number of statutes would launch this Court into a roiling maelstrom of policy issues without a constitutional compass." A district court may refuse to enter a declaratory judgment if it would not terminate the uncertainty or controversy giving rise to the proceedings, § 27-8-206, MCA; Miller, ¶ 7. Courts do not function, even under the Declaratory Judgments Act, to determine speculative matters, to enter anticipatory judgments, to declare social status, to give advisory opinions or to give abstract opinions. Mont. Dept. Nat. Res. & Cons. v. Intake Water Co., 171 Mont. 416, 440, 558 P.2d 1110, 1123 (1976).

¶10 In addition, declaring the parameters of constitutional rights is a serious matter. This Court, for example, avoids deciding constitutional issues whenever possible. Weidow v. Uninsured Employers' Fund, 2010 MT 292, ¶ 22, 359 Mont. 77, 246 P.3d 704. Statutes are presumed to be constitutional. Oberson v. U.S. Forest Service, 2007 MT 293, ¶ 14, 339 Mont. 519, 171 P.3d 715. That presumption can only be overcome after careful consideration of the purpose and effect of the statute, employing the proper level of scrutiny. Oberson, ¶ 22 (analyzing the constitutionality of the snowmobile liability statute, § 23-2-653, MCA). Broadly determining the constitutionality of a "statutory scheme" that may, according to Plaintiffs, involve hundreds of separate statutes, is contrary to established jurisprudence.

¶11 This Court may fashion the relief warranted by any appeal. Section 3-2-204, MCA. It is this Court's opinion that 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. For example, the record contains several affidavits from the named Plaintiffs and others that assert that they have suffered discrimination from the State's failure to recognize their relationships. While Plaintiffs' brief listed Title 40 of the Montana Code as an area of family law that furthers such discrimination, the dismissal of this action because of Plaintiffs' broad claims has precluded the development of claims that specific statutes promote or cause discrimination. These are important issues and should be decided only after the statutes involved are specifically identified and specifically analyzed in district court proceedings.

¶12 Montana law generally favors allowing a party to amend its pleadings. Rule 15, M. R. Civ. P.; Hobble-Diamond Cattle Co. v. Triangle Irrig. Co., 249 Mont. 322, 325, 815 P.2d 1153, 1155 (1991); Aldrich & Co. v. Ellis, 2002 MT 177, ¶ 27, 311 Mont. 1, 52

P.3d 388 (remand to allow plaintiff to add claim). The purpose of amending a complaint is to give the defendant adequate notice of the plaintiff's claims. Kudloff v. City of Billings, 260 Mont. 371, 375, 860 P.2d 140, 142 (1993). The decision to allow a plaintiff to amend a complaint is essentially an equitable one. Stundal v. Stundal, 2000 MT 21, ¶ 17, 298 Mont. 141, 995 P.2d 420, and leave to amend may be denied when the amendment would be futile or legally insufficient. Hickey v. Baker School Dist. No. 12, 2002 MT 322, ¶ 33, 313 Mont. 162, 60 P.3d 966.

¶13 The Plaintiffs should be afforded the opportunity to amend their complaint and to develop an argument as to the nature of the State's interest in advancing specific laws as well as the level of constitutional scrutiny that should be applied to those laws by the courts. Plaintiffs of course may choose to not amend, and that decision is theirs to make. If they do amend they will need to choose what statute or statutes to put in issue and upon what legal grounds. The dissent may be disappointed in the majority's approach to this case. However, that does not change the fact that the Plaintiffs chose to pursue an overly broad request for a declaratory judgment and injunctive relief, without developing a factual record in the District Court and without identifying a specific statute or statutes that impose the discrimination they allege.

¶14 For the reasons set out above, the decision of the District Court is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion, in a schedule to be determined by the District Court.

¶15 The Clerk is directed to provide copies hereof to all counsel of record and to the Honorable Jeffrey M. Sherlock, District Judge.

DATED this 17th day of December, 2012.

/S/ MIKE McGRATH /S/ BETH BAKER /S/ BRIAN MORRIS /S/ JIM RICE

Justice Jim Rice, concurring.

¶16 I join in the Court's decision affirming the District Court. I agree with the Court and the District Court that the remedy sought in Plaintiffs' prayer for relief-that the court issue an order requiring the State to offer Plaintiffs "a legal status and statutory structure that confers the protections and obligations that the State provides to different-sex couples who marry"-is overly broad and not justiciable. Opinion, ¶ 8. Further, I have no objection to remanding the case to allow Plaintiffs an opportunity to amend their pleadings to start the case anew. Opinion, ¶¶ 12-13. This is the procedural equivalent to filing a different legal challenge after dismissal of a case, which the Plaintiffs are entitled to pursue. Thus, I have signed the Court's Opinion.

¶17 I write separately to address the District Court's analysis of the Marriage Amendment to the Montana Constitution, and to explain the Amendment's application to Plaintiffs' substantive equal protection contentions set forth in Count I of their complaint. I believe that the Amendment provides another basis to affirm the District Court's dismissal of Count I, in addition to the overly broad nature of the relief sought.

¶18 The District Court reasoned that, while "this Court does not necessarily feel that Montana's marriage amendment bars it from acting," nonetheless "the existence of the marriage amendment plays into the jurisprudential decision that Plaintiffs' requested relief constitutes an impermissible sojourn into the powers of the legislative branch." I agree that the Marriage Amendment is applicable, but believe the District Court understated its significance. With its passage, the law's historical designation of marriage as between a man and a woman-and the exclusive treatment premised thereon-became an expressly constitutional classification.

¶19 Count I alleges that "Plaintiffs are similarly situated in every material respect to [] different-sex couples" and that the State's exclusion of Plaintiffs from the benefits and obligations "that the State offers to similarly-situated different-sex couples through the legal status of marriage impermissibly subjects Plaintiffs to unequal treatment" and constitutes "State discrimination." With all due respect to Plaintiffs, I believe their equal protection claim must fail under longstanding and deeply rooted legal principles, in both Montana and national jurisprudence. Under the law, discussed below, marriage between a man and woman is a unique relationship, dissimilar to all other relationships and alone essential to the nation's foundation and survival, and the State errs neither by recognizing it as such nor by giving it exclusive treatment. In sum, it is not discrimination to treat uniquely that which is unique.

¶20 Plaintiffs emphasize that they are not seeking the right to marry, but nonetheless claim in Count I that they are entitled to all of the "protections, rights, benefits, duties, responsibilities, and obligations" which the State grants based upon marriage. During oral argument, Plaintiffs' counsel acknowledged that the relief sought would strip from the law the exclusive treatment of marriage as a basis for providing any concrete legal benefit. The only exclusive meaning left to marriage, counsel said, would be aspirational: "How people view it, how symbolic and how important and how solemn it is." The question thus posed by Plaintiffs' equal protection claim is whether the State is barred by the Constitution from using marriage as an exclusive basis for granting any concrete legal entitlement.

¶21 As we have explained, "[t]he first step in an equal protection analysis is to 'identify the classes involved, and determine if they are similarly situated.'" Jaksha v. Silver Bow Co., 2009 MT 263, ¶ 16, 352 Mont. 46, 214 P.3d 1248 (citation omitted). "'If the classes are not similarly situated, then . . . it is not necessary for us to analyze the challenge further.'" Kershaw v. Dept. of Transp., 2011 MT 170, ¶ 17, 361 Mont. 215, 257 P.3d 358. The classes here have been identified as same-sex couples, represented by Plaintiffs, and married couples. To analyze whether these classes are similarly situated, I begin by summarizing the extensive jurisprudence on the issue of marriage, particularly, as it stood when Montanans were asked to adopt the Marriage Amendment, and then turn to the Amendment itself.

¶22 It is so well established that marriage between a man and a woman is a fundamental constitutional right I need not belabor the point. See Turner v. Safley, 482 U.S. 78, 95, 107 S. Ct. 2254, 2265 (1987) ("[T]he decision to marry is a fundamental right"); Zablocki v. Redhail, 434 U.S. 374, 384, 98 S. Ct. 673, 680 (1978) (quoting Meyer v. Neb., 262 U.S. 390, 399, 43 S. Ct. 625, 626 (1923)) ("the right 'to marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause"); Conaway v. Deane, 932 A.2d 571, 618 n. 63 (Md. 2007) (citations omitted) ("It is beyond doubt that the right to marry is a fundamental liberty interest protected by the Constitution."). Likewise, this Court has stated, "[w]e too have recognized that marriage is a fundamental right." State v. Guill, 2011 MT 32, ¶ 66, 359 Mont. 225, 248 P.3d 826.*fn1

¶23 Marriage between a man and woman has been declared a fundamental right because of the critical functions it performs and the purposes it fulfills for the greater society. "[M]arriage involves interests of basic importance in our society." Boddie v. Conn., 401 U.S. 371, 376, 91 S. Ct. 780, 785 (1971) (citations omitted). Marriage is "the relationship that is the foundation of the family in our society." Zablocki, 434 U.S. at 386, 98 S. Ct. at 681. Maintenance of marriage is an issue in which "the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress." Maynard v. Hill, 125 U.S. 190, 210-11, 8 S. Ct. 723, 729 (1888). Our Court has explained that "upon [marriage's] permanence depends the family, the foundation of the home, 'upon the preservation of which, in turn, depends good citizenship and the permanency of a republican form of government.'" Walker v. Hill, 90 Mont. 111, 124, 300 P. 260, 263-64 (1931) (citations omitted); accord Franklin v. Franklin, 40 Mont. 348, 350, 106 P. 353, 354 (1910) (Upon marriage "depends the home, upon the preservation of which, in turn, depends good citizenship and the permanency of a republican form of government. The state therefore favors the institution of marriage"). "Marriage is a foundation stone in the bedrock of our state and communities." Cook v. Cook, 104 P.3d 857, 862, ¶ 18 (Ariz. App. Div. 1 2005).*fn2

¶24 Beyond these reasons of family, societal stability, governance and progress, as important as they are, courts analyzing marriage have focused upon even more compelling reasons: its exclusive role in procreation and in insuring the survival, protection and thriving of the human race. Marriage is "'fundamental to our very existence and survival.'" Guill, ¶ 66 (quoting Loving v. Va., 388 U.S. 1, 12, 87 S. Ct. 1817, 1824 (1967)). "Marriage and procreation are fundamental to the very existence and survival of the race." Skinner v. Okla. ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113 (1942). "[V]irtually every [U.S.] Supreme Court case recognizing as fundamental the right to marry indicates as the basis for the conclusion the institution's inextricable link to procreation, which necessarily and biologically involves participation (in ways either intimate or remote) by a man and a woman." Conaway v. Deane, 932 A.2d 571, 621 (Md. 2007). "All of the cases infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species." Conaway, 932 A.2d at 619 (citing the Supreme Court's holdings in Loving, Zablocki, Turner, and Skinner).

¶25 From procreation springs further societal protections provided exclusively by marriage. As noted above, courts have cited the raising of children to be one of the core functions which support constitutional protection of marriage. See Meyer v. Neb., 262 U.S. at 399, 43 S. Ct. at 626; see also Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971), appeal dismissed, 409 U.S. 810, 93 S. Ct. 37 (1972) ("The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.") (emphasis added). Married couples role-model and thereby teach procreative relationships and the procreative lifestyle to children of the marriage as they are raised, ensuring that marriage's human race-sustaining functions upon which the survival and stability of society depend are passed to and replicated by the next generation.

¶26 The replication, by children, of the procreative marital relationship as role-modeled by their married parents not only perpetuates the race-sustaining function by populating the race, but also builds extended families which share hereditary characteristics of a common gene pool. Throughout history, this genetic commonality has provided an invaluable tool to enhance human survival. Common hereditary traits provide critical understanding of an extended family's physical and mental strengths, weaknesses, and susceptibility to disease and death. Even before the advent of modern science, this information was collectively shared among extended family members and served to alert and prepare them for eventualities related to the onset of disease and other life patterns, thus strengthening their health and livelihood. Modern medical technologies have only increased this capability, as research of an extended family's genetics now serves to predict, detect, and treat common, family-related diseases, further enhancing human survival.

¶27 Upon extended families are built people groups or ethnic groups of individual races, tribes, kindred, and nationalities based upon their broadly shared genetic characteristics. In addition to developing understanding about their mutually shared health risks, people groups throughout history have looked outward to their physical surroundings and, based upon their common genetics and collective experiences, have obtained the knowledge necessary for their people to adapt to and function well in the physical environment, thus enhancing their health and longevity. People groups around the world have been linked to make up the larger human race. While world customs and cultures vary greatly, these societies share the common foundational element of a woman and a man united in marriage. It is little wonder the Supreme Court has said that marriage is "fundamental to the very existence and survival of the race." Zablocki, 434 U.S. at 384 (citing Skinner, 316 U.S. at 541). One court well summed up these principles: "[T]he State has a compelling interest in fostering the traditional institution of marriage (whether based on self-preservation, procreation, or in nurturing and keeping alive the concept of marriage and family as a basic fabric of our society), as old and as fundamental as our entire civilization, which institution is deeply rooted and long established in firm and rich societal values." In re Estate of Cooper, 564 N.Y.S.2d 684, 688 (N.Y. Surrog. Ct. 1990); see also Conaway, 932 A.2d at 630 ("In light of the fundamental nature of procreation, and the importance placed on it by the Supreme Court, safeguarding an environment most conducive to the stable propagation and continuance of the human race is a legitimate government interest.").

¶28 These principles demonstrate clearly that marriage is not merely a private act. It is also a public act which serves a public function critical to society, that of bringing together female and male to create and raise the future generation. Courts have recognized this, holding that the above-discussed critical societal functions are uniquely provided by marriage between a woman and man and cannot be replicated by other relationships.*fn3 "Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage. The legislature could reasonably conclude that the institution of civil marriage as it has existed in the country from the beginning has successfully provided this desirable social structure and should be preserved." In re J.B., 326 S.W.3d 654, 677 (Tex. App. Dallas 2010) (internal citations omitted). "Indisputably, the only sexual relationship capable of producing children is one between a man and a woman. The State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children. Because same-sex couples cannot by themselves procreate, the State could also reasonably decide that sanctioning same-sex marriages would do little to advance the State's interest in ensuring responsible procreation within committed, long-term relationships." Standhardt v. Super. Ct. of Ariz., 77 P.3d 451, 462-63, ¶ 38 (Ariz. App. Div. 1 2003) (emphasis added); see also Citizens for Equal Protec. v. Bruning, 455 F.3d 859, 868 (8th Cir. 2006) ("[Appellees'] argument disregards the expressed intent of traditional marriage laws-to encourage heterosexual couples to bear and raise children in committed marriage relationships.").*fn4

"[S]o far as heterosexuals are concerned, the evidence that on average married couples live longer, are healthier, earn more, have lower rates of substance abuse and mental illness, are less likely to commit suicide, and report higher levels of happiness-that marriage civilizes young males, confers economies of scale and of joint consumption, minimizes sexually transmitted disease, and provides a stable and nourishing framework for child rearing-refutes any claim that policies designed to promote marriage are irrational." Irizarry v. Bd. of Educ. of Chicago, 251 F.3d 604, 607 (7th Cir. 2001) (citations omitted). Modern medicine makes it technologically possible for some same-sex couples to artificially conceive and bear children. However, that fact does not diminish the truth that human life cannot be sustained without procreative marriage relationships, even in light of modern technology.

¶29 Consequently, the right to marry has not been held to mean there is a fundamental right to marry someone of the same gender. "[V]irtually every court to have considered the issue has held that same-sex marriage is not constitutionally protected as fundamental in either their state or the Nation as a whole." Conaway, 932 A.2d at 628 (citations omitted). "The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. . . . The right to marry is unquestionably a fundamental right. The right to marry someone of the same sex, however, is not 'deeply rooted'; it has not even been asserted until relatively recent times." Hernandez v. Robles, 855 N.E.2d 1, 8-9 (N.Y. 2006) (citations omitted).*fn5

¶30 Given this exclusive importance of marriage, the law developed to give it sanction, permanence, and a formal structure upon which to base legal entitlement and obligation. Although commonly referred to as a contractual relationship, the obligation of marriage is more than merely contractual. As the Supreme Court has explained, "when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities." Maynard, 125 U.S. at 210-11, 8 S. Ct. at 729. "When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties and obligations of which rest, not upon their agreement, but upon the general law of the State, statutory or common, which defines and prescribes those rights, duties and obligations. They are of law, not of contract." Adams, 51 Me. at 483. As we have noted, "it is to the interest of the state that [marriage] be permanent." Franklin, 40 Mont. at 350, 106 P. at 354.

¶31 Upon this structure of permanence, and again in view of the exclusive importance of marriage, the state has built a system of exclusive benefits and protections on behalf of, and dependent upon, marriage. "[M]arital status often is a pre-condition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock)." Turner, 482 U.S. at 96, 107 S. Ct. at 2265. "In terms of federal benefits, the Government Accounting Office (GAO) compiled in 1997, and updated in 2004, a list of federal rights, responsibilities, and privileges granted to married couples, but denied to same-sex couples. According to the study, there were 1,138 federal statutes providing such benefits." Conaway, 932 A.2d at 582 n. 6 (citations omitted). Plaintiffs provided the District Court with a list of over 340 Montana statutes that classify based on marital status and that would be impacted by the proposed relief sought.

¶32 While Plaintiffs do not claim the right to marry, they are nonetheless claiming constitutional entitlement to all of these same rights and benefits which are provided to married couples on the ground that they are "similarly situated in every material respect." However, this position ignores the historical and long-developed legal foundation and formal structure giving marriage an exclusive legal permanence, which does not exist for other relationships. More importantly, the above discussion, including the precedent addressing marriage and its unique attributes, demonstrates that Plaintiffs' claim to be "similarly situated" to married couples is without merit. This is not meant to disparage Plaintiffs or minimize the contributions they offer, but is simply a statement of the reality that marriage between a woman and man exclusively provides unique and transcendent societal protections vital to human survival which differentiate it and make it dissimilar from other relationships. These protections uniquely provided by marriage form a legitimate and even compelling state interest, and thus a constitutional basis, for the State's exclusive treatment of marriage.

¶33 The above discussion of the law of marriage reflects the general state of the law before the Marriage Amendment was adopted by Montanans in 2004. Although some of the cited cases were decided after adoption of the Marriage Amendment, they were premised upon pre-2004 precedent, and marriage was considered to be a fundamental right with constitutionally protected status at the time of the Amendment's adoption. However, several years earlier, legal arguments attacking the exclusive status of marriage began to be offered, and considerable concern was generated over whether the law's exclusive treatment of marriage would remain, or whether courts would begin to overturn long-standing precedent favoring marriage. With all due respect, several courts indicated a willingness to uproot established legal precedent recognizing the uniqueness of marriage between a man and woman, and eliminate the law's exclusive treatment of marriage. See e.g. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); Baker v. State, 744 A.2d 864 (Vt. 2000); Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941 (Mass. 2003).

¶34 The response of the citizens of the country to these court decisions can only be described as a phenomenon of direct democracy. To counter this threat to established precedent favoring marriage, citizens of some 31 states acted to either reinstate the law's exclusive definition and treatment of marriage in some manner, or to ensure that courts could not eliminate such exclusive treatment, by amending their state constitutions to explicitly protect marriage. Montana was one of those states.

¶35 Building on the foundation of historical legal protections for marriage, Montana voters solidified the premise that marriage is between one man and one woman by placing the concept expressly into the Montana Constitution. Mont. Const. art. XIII, § 7. The Voter Information Packet provided voters with the arguments for and against adoption of the Amendment. Proponents stated that the "[t]he time-honored, vital institution of marriage is being threatened. . . . Special interest groups are constantly seeking to gain special rights that infringe on the rights of the rest of society. Such special rights cost all Montanans. . . . Voting yes on CI-96 allows the people to give clear direction to judges on this important issue."

¶36 Directly related to this case, proponents discussed the issue of benefits which are attendant to marriage. "If CI-96 fails, how will homosexual marriage one day affect your family? . . . Small business employers in Montana may someday be required to provide expanded health coverage, retirement and fringe benefits to same-sex 'spouses' of employees. The broad subjectivity of such un-funded mandates could hurt Montana's economy and jobs." Opponents likewise also focused on benefits and obligations associated with same-sex couples: "if CI-96 were to pass, the State could nullify the contractual agreements made between same-gender partners. CI-96 would limit innovative and robust companies from treating their employees equitably." As the District Court noted, both sides of the debate acknowledged "that the marriage amendment would have something to do with the benefits and obligations that relate to the status of being married."

¶37 Proponents and opponents alike focused on the issue of benefits because everyone understood the law: that marriage is a concrete legal status upon which the State premises exclusive treatment and benefits, as demonstrated by the above-cited authority. It is more than a label, a societal choice, a union of two people, or an aspiration. Indeed, marriage is an obligation given exclusive protections in the law because it provides exclusive protections to society. Even before adoption of the Marriage Amendment, this was recognized in Montana statute. See e.g. §§ 40-1-101, 40-1-103, 40-1-401, 40-2-101, 40-2-102, MCA. Montana has long used marital status as an exclusive basis for provision and allotment of benefits and obligations. See e.g. §§ 2-18-601, 19-17-405, 33-22-140, 39-51-2205, 39-71-723, 50-9-106, 72-2-112, 15-30-2114, 15-30-2366, MCA. Building on these statutory provisions and the prior holdings of our cases, Montana citizens enacted the Marriage Amendment to expressly "constitutionalize" these principles, thereby strengthening the law's exclusive treatment of marriage. See State v. Toomey, 135 Mont. 35, 51-53, 335 P.2d 1051, 1059-60 (1958) ("[W]e must construe the amendment in the light of the conditions as they existed at the time of its adoption. Rankin v. Love, 125 Mont. 184, 187, 232 P.2d 998, 1000 (1951); State ex rel. Bottomly v. District Court, 73 Mont. 541, 547, 237 P. 525, 527 (1925). . . . "It is only reasonable to assume that the people, in adopting the amendment to our Constitution, adopted it in light of the existing [state law] and the construction placed upon that law by this Court.").

¶38 When asked during oral argument what unique legal concreteness would remain to marriage if the requested relief was granted, Plaintiffs' counsel replied, "How people view it, how symbolic and how important and how solemn it is, is important. Marriage is meaningful." When asked again, "In what way? I'm trying to understand what concrete[ness] in the law is left?" Counsel responded, "The significance is that you're married." However, such a diminished concept of marriage would necessitate a dramatic rewriting of the law. Marriage has always been much more-a concrete legal status which the law recognized and favored with exclusive treatment, including benefits and obligations. In adopting the Marriage Amendment, Montana voters determined to permanently preserve this exclusive treatment for marriage by placing it in the Constitution. Thus, in one way, Plaintiffs are asking this Court to render the Marriage Amendment superfluous by holding that it added nothing to the law's previous exclusive classification of marriage.*fn6 But further, Plaintiffs are asking the Court to hold the Marriage Amendment actually had a reverse effect-that marriage has less legal protection now than before the Amendment was passed, because marriage can no longer serve as the basis for exclusive treatment by the State. Clearly, this is directly contrary to the "clear direction to judges" which the Marriage Amendment was designed to give.

¶39 "The Equal Protection Clause 'is not a license for courts to judge the wisdom, fairness, or logic of [the voters'] choices.'" Citizens for Equal Protec., 455 F.3d at 867 (bracket in original) (quoting F.C.C. v. Beach Commun., Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 2101 (1993)). Now that the marriage relationship has been given constitutionally-protected status, any change to the long-standing principles which govern this issue must come from the people through the democratic process, not from the courts.*fn7 "The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature-or the people through the initiative process-may rationally choose not to expand in wholesale fashion the groups entitled to those benefits." Citizens for Equal Protec., 455 F.3d at 868 (emphasis added). "[A]s we have explained, there is no fundamental right to be free of the political barrier a validly enacted constitutional amendment erects." Citizens for Equal Protec., 455 F.3d at 868.

¶40 I appreciate the deeply-held feelings and beliefs of the Plaintiffs and condemn any acts of cruelty they have suffered, some of which are referenced in their affidavits. Yet, given the long-standing legal protections and exclusive treatment of marriage, with its corresponding benefits and obligations, and the incorporation of those principles into the Montana Constitution by the citizens of Montana, Plaintiffs' equal protection claim must fail.

¶41 I concur.

/S/ JIM RICE

Justice Patricia O. Cotter dissents.

¶42 I dissent from the Court's Opinion, and concur with virtually all of Justice Nelson's well-written and comprehensive Dissent. I write separately to state that I would not liken the Court's approach here to cases sanctioning slavery and racial segregation.

Dissent, ¶ 51. Moreover, I do not agree that the Court is taking the approach it has adopted "to avoid a socially divisive issue." Dissent, ¶ 74. Although I disagree with the Court's analysis and resolution, I do not believe it is acting in bad faith.

¶43 Second, I decline to join the bulk of Part V of the Dissent, which challenges the constitutionality of the Marriage Amendment. Plaintiffs do not challenge the Marriage Amendment, and I agree that the relief Plaintiffs seek does not offend the Marriage Amendment in the slightest.

¶44 With the foregoing caveat, I therefore join Justice Nelson's Dissent through the first sentence of ¶ 179.

/S/ PATRICIA COTTER

Justice Michael E Wheat joins the Dissent of Justice Patricia O. Cotter.

/S/ MICHAEL E WHEAT

Justice James C. Nelson, dissenting.

I. INTRODUCTION

¶45 [I]f we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask an unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions.*fn1

¶46 There are some cases where we look back and can see that the court was clearly on the wrong side of history. Among the most notorious are Dred Scott v. Sandford, 60 U.S. 393 (1857) (slaves of African descent are property, not citizens); Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138 (1896) (segregation of white and colored people in public facilities does not violate equal protection, provided the facilities are "equal"); Muller v. Oregon, 208 U.S. 412, 421-23, 28 S. Ct. 324, 326-27 (1908) (differential treatment of women in employment is justified because "woman has always been dependent upon man"); Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927) (compulsory sterilization of feebleminded individuals "in order to prevent our being swamped with incompetence" does not violate due process or equal protection; "[t]hree generations of imbeciles are enough"); People v. Hall, 4 Cal. 399, 404-05 (Cal. 1854) (the Chinese, being "a race of people whom nature has marked as inferior" and who are "incapable of progress or intellectual development beyond a certain point," may be precluded from testifying against white persons); and Scott v. State, 39 Ga. 321, 323 (1869) (racial intermarriage is "unnatural" and "productive of deplorable results"; "the offspring of these unnatural connections are generally sickly and effeminate"). I venture to say that another case belonging on this list is Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841 (1986) (the state may regulate private sexual conduct between consenting adults), which the Supreme Court overruled in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003) (individual decisions by two adults-married or unmarried-concerning the intimacies of their physical relationship are a form of "liberty" protected by the Fourteenth Amendment). As Justice Kennedy aptly stated in his opinion for the Court in Lawrence, "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." 539 U.S. at 579, 123 S. Ct. at 2484.

¶47 In the wake of the Hawaii Supreme Court's decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), which held that denying same-sex couples the ability to marry must be justified under "strict scrutiny" principles, measures were proposed and adopted in as many as 30 states, including Montana, purporting to limit marriage to one man and one woman. Due to the success of these measures, it became "a constant theme of opponents of same-sex marriage that whenever it has been put before the voters it has lost." Erik Eckholm, In Maine and Maryland, Victories at the Ballot Box for Same-Sex Marriage, N.Y. Times (Nov. 7, 2012). That, however, is no longer true. In this most recent election of November 6, 2012, voters in Maine, Maryland, and Washington approved ballot measures authorizing same-sex couples to marry. And in Minnesota, voters defeated a ballot measure that would have amended the Minnesota Constitution to limit marriage to one man and one woman. It appears that a majority of voters in these states have seen through the scare tactics and propaganda which "family values" organizations and certain religious groups have used to persuade the electorate that allowing same-sex marriage will harm children, hurt businesses and the economy, intrude on religious freedoms, and undermine the institution of marriage itself. As discussed in greater detail later in this Dissent, there is no actual evidence supporting any of the maledictions and stereotypes used in the campaigns against same-sex marriage.

¶48 Meanwhile, in Montana, the issue at hand is not about same-sex marriage. It is less dramatic, though by no means less important. It concerns the right of committed intimate same-sex couples to receive the same civil protections which the State makes available to committed intimate different-sex couples. Plaintiffs assert, and rightly so, that their government may not single out unpopular groups for disfavored treatment, as the State of Montana has done here. Shockingly, this Court refuses to uphold this most basic principle of constitutional law. While I have not always agreed with this Court's decisions-in fact, I have strenuously disagreed with my colleagues on occasion*fn2 -I have never disagreed more strongly with the Court as I do in this case. With due respect, I believe today's decision, like those mentioned above, wrongly deprives an abused minority of their civil rights.

¶49 This Dissent is lengthy. It is meant to be, for several reasons. First, I believe this is the most important civil rights case to come before this Court in decades. And it will be my last opportunity, sitting as a member of this Court, to address the fundamental constitutional rights of gay, lesbian, and bisexual people and the discrimination which the State of Montana is perpetrating against these individuals. The issues here are significant and complex, and deserving of thorough consideration, analysis, and discussion.

¶50 Second, I am profoundly disappointed in this Court, as an institution, for rendering a decision that requires Plaintiffs, the same-sex couples here, to wage a litigation jihad against their own government to obtain the statutory rights, benefits, and protections to which they are constitutionally entitled. I have located no court decision in this country-state or federal-applying the declaratory judgment laws in the cabined and unworkable fashion that this Court does here.

¶51 Lastly, I am thoroughly disheartened that today's decision takes civil rights in this State backward to a time when court decisions supported and facilitated other equally pernicious forms of government-sanctioned discrimination, including slavery and racial segregation; women being viewed as little more than men's dependents, unable to vote or own property; the Chinese being deemed an "inferior" race; the compulsory sterilization of the "feebleminded"; and the criminalization of private sexual intimacy between two consenting adults. No other minority group has been treated in this fashion in this State in modern times. This, truly, is a shameful, black day for civil rights in Montana.

¶52 Yet, while gay, lesbian, and bisexual citizens may have lost this battle, the war is not over. If we have learned anything as an evolving species, it is that no government, no religion, no institution, and no political party can long oppress the inviolable dignity and spirit of human beings in their fight for fairness in the courts, access to justice, and equal protection of the laws.

¶53 With these introductory remarks, I now proceed to my detailed discussion and analysis. In Part II (¶¶ 57-80), I provide a background and overview of the case and the issues. In Part III (¶¶ 81-113), I explain the declaratory judgment laws and address in detail the District Court's and this Court's erroneous analyses under those laws.

¶54 Next, in Part IV (¶¶ 114-168), I analyze Plaintiffs' constitutional claim. Given the evidence that gay, lesbian, and bisexual people are reviled and demonized in Montana and have suffered a history of invidious and prejudicial treatment, I conclude that sexual orientation is a suspect class under Montana's Equal Protection Clause, and thus that discrimination based on sexual orientation in the provision of statutory benefits, protections, and services must survive "strict scrutiny" review. I further conclude that treating Plaintiffs differently based on sexual orientation is an affront to and violation of their inviolable right to human dignity, also protected by Montana's Constitution.

¶55 As a final matter, in Part V (¶¶ 169-206), I am compelled to address the so-called Marriage Amendment to Montana's Constitution (Mont. Const. art. XIII, § 7). Plaintiffs do not ask to be "married," and granting them the relief they seek does not offend that provision in the slightest. Yet, the State relies on the Marriage Amendment as support for its position, and the State's argument before this Court is bolstered by an outpouring of attacks on the same-sex couples by no less than 128 Montana protestant churches and the Montana Catholic Bishops, all appearing through the Montana Catholic Conference as amicus curiae, along with other "family values" organizations, also appearing as amici curiae. The Marriage Amendment is the conduit through which the State and its amici claim that it may deprive Plaintiffs-who, because of this provision, cannot marry-of the statutory benefits and protections which the State grants to married couples. That the State and its amici have injected the Marriage Amendment into this case at all, however, demonstrates, in spades, what that provision is really about: the constitutionalization of religious doctrine. Indeed, what the State and its amici seek to do here is conflate sectarian canons regarding marriage with secular laws governing the provision of benefits and protections to committed couples. In my view, this approach violates several constitutional provisions, not the least of which is the clause in Montana's Declaration of Rights prohibiting the State from establishing religion. Emblematic of the religiously grounded discrimination defended by the State and its amici is the blatant mendacity underlying the Marriage Amendment initiative-a fourberie reminiscent of some of the worst propaganda campaigns perpetrated in modern times.

¶56 In the last section of this Dissent, Part VI (¶¶ 207-212), I set forth my conclusions and provide a short epilogue.

II. BACKGROUND AND OVERVIEW

¶57 Plaintiffs here are twelve lesbian, gay, or bisexual individuals who are in six committed, intimate, same-sex relationships. As of the filing of their affidavits in the District Court on December 10, 2010, plaintiffs Donaldson and Guggenheim had been in a relationship for 27 years; Leslie and Haugland for 12 years; Stallings and Wagner for 21 years; Gibson and Boettcher for 11 years; Long and Parker for 8 years; and Owens and Williams for 18 years. With their life partners, Plaintiffs have established families which provide them with long-term mutual emotional and economic support and a stable environment for raising children. Plaintiffs are employed in, or have retired from, a variety of professions including teaching, coaching, counseling, engineering, music, art, and medicine. They are active in their children's schools, in their churches, in their professions, and in their communities. One has served in the Montana Legislature. It is undisputed that Plaintiffs are productive members of society and have, in fact, successfully raised a number of children. Some Plaintiffs are now grandparents.

¶58 Plaintiffs desire to protect their family relationships in the same way their heterosexual neighbors, co-workers, and fellow community members are able to do under Montana law. Plaintiffs have taken some steps in this regard. For example, they have entered into joint tenancy arrangements on their houses and bank accounts and have executed powers of attorney, healthcare directives, and wills in favor of their partners. Plaintiffs point out, however, that such private legal arrangements can be expensive and, thus, are not available to many couples. Plaintiffs also express concerns about whether these arrangements will be honored-especially in the event of a medical emergency. Some Plaintiffs describe (in their affidavits) past incidents when healthcare personnel refused to speak with them about their partner's condition. Another Plaintiff (Leslie) describes how she and her former partner, Erika, took many of the legally available steps to protect their relationship. Yet, after Erika died in a work-related accident on Christmas Day 1996, which was their eighth anniversary, Leslie found herself "powerless and degraded" and treated like a "legal stranger" when she attempted to exercise the responsibilities of a partner. She was denied access to Erika's remains; she was denied a copy of the death certificate by the sheriff because she was a "stranger in blood"; she was refused paid bereavement leave by her employer (the same employer for whom Erika had been working when she was killed) and thus had to go back to work only a week after Erika's death; she had no rights under the intestacy laws with regard to Erika's property; she had no legal means to prevent Erika's family from entering their home, going through their belongings, and taking Erika's possessions, many of which the two had shared as domestic partners; and, to add insult to injury, she was required to pay inheritance taxes on the proceeds from Erika's half of their condominium, which Leslie was forced to sell.

¶59 The underlying issue, as the District Court stated in its Order, is that "individuals such as Plaintiffs are denied a variety of benefits and protections that are statutorily available to heterosexual spouses." The District Court identified some of these statutes and noted some of the "real life scenarios" in which these laws have affected Plaintiffs. For example, Montana's intestacy laws and workers' compensation laws provide certain protections to the surviving spouse of a different-sex relationship, but not to the surviving partner of a same-sex relationship. Likewise, bereavement leave is made available to a different-sex spouse but not to a same-sex partner. Furthermore, Plaintiffs are unable under Montana's tax laws to file joint returns or to take the spousal exemption for non-working spouses if filing separately. Montana law permits the different-sex spouse of a terminally ill person to withhold life-sustaining treatment, but does not afford this right to the same-sex partner of a terminally ill person. Similarly, the different-sex spouse of a person who has become mentally incompetent has priority to become guardian, but a same-sex partner does not have this same right.

¶60 If not for the fact that each couple consists of two members of the same sex, Plaintiffs' relationships could qualify as "marriage" under Montana law. Title 40, chapter 1, MCA. As noted, however, Plaintiffs do not ask to be granted the status of "married." For purposes of this case, Plaintiffs only seek a determination that they are entitled, as a matter of constitutional law, to obtain the same rights and benefits-along with the same mutual responsibilities and obligations-which the State of Montana has chosen to grant to different-sex married couples. The premise underlying this claim is that "marriage" does not include an exclusive right to any particular rights and benefits conferred by the government, and that "marriage" connotes something other than just the receipt of such rights and benefits. See e.g. In re Marriage Cases, 183 P.3d 384, 426-27, 434-35, 444-46 (Cal. 2008) ("the constitutional right to marry clearly does not obligate the state to afford specific tax or other governmental benefits on the basis of a couple's family relationship"; even if all of the personal and dignity interests which have traditionally informed the right to marry have been given to same-sex couples through the Domestic Partner Act, there is still "a considerable and undeniable symbolic importance" to the designation of "marriage"); Kerrigan v. Commr. of Pub. Health, 957 A.2d 407, 417-18 (Conn. 2008) ("[m]arriage . . . is not merely shorthand for a discrete set of legal rights and responsibilities"; "[a]lthough marriage and civil unions do embody the same legal rights under our law, they are by no means 'equal'[;] . . . the former is an institution of transcendent historical, cultural and social significance, whereas the latter most surely is not"); Perry v. Brown, 671 F.3d 1052, 1077-79 (9th Cir. 2012) (discussing "the extraordinary significance of the official designation of 'marriage' " apart from the rights, protections, and benefits conferred by the government). Therefore, Plaintiffs argue, when the State chooses to make benefits and protections available to persons in committed intimate relationships, the State must do so evenhandedly, without discriminating on the basis of the sexual orientation of the persons in those relationships. In a sense, Plaintiffs are merely demanding "separate but equal" treatment by the State-the minimal floor of equal protection rights under Plessy.

¶61 The Attorney General does not deny that the State could provide such protections to committed intimate same-sex couples. As a matter of fact, the Attorney General acknowledges in his appellate brief that "the Legislature could choose to provide benefits similar to spousal benefits to unmarried couples" and that "the Legislature could create a different status conferring similar benefits outside of marriage for civil unions or domestic partners." The Attorney General, speaking through an Assistant Attorney General, made similar statements during oral argument.

¶62 One may wonder, then, why we do not simply grant Plaintiffs the declaratory relief they seek. While I certainly do not condone the "separate but equal" doctrine of Plessy-which the Supreme Court overruled in Brown v. Board of Ed., 347 U.S. 483, 74 S. Ct. 686 (1954)-Plaintiffs have made clear that, for purposes of this lawsuit, they do not seek the status of marriage. They merely seek "equal opportunity" to obtain the same benefits and protections which the State, in its discretion, has chosen to make available to different-sex couples. It is surely beyond cavil that Plaintiffs are entitled, at the very least, to the equal protection of these laws-even if that protection is effected through a regime that does not include marriage, as the Attorney General suggests. See Alaska Civ. Liberties Union v. State, 122 P.3d 781, 793-94 (Alaska 2005) (restricting public benefits programs to different-sex married couples violates the rights of employees with same-sex partners to "equal rights, opportunities, and protection under the law"); Lewis v. Harris, 908 A.2d 196, 220-21 (N.J. 2006) (as a matter of equal protection, "committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples"); Baker v. State, 744 A.2d 864, 886 (Vt. 1999) (the State has "a constitutional obligation to extend to [same-sex couples] the common benefit, protection, and security that Vermont law provides opposite-sex married couples").

¶63 It appears from the District Court record, the arguments on appeal, and the Court's Opinion that the hindrance in recognizing and declaring these rights boils down to a simple refusal by those in power to make the constitutionally sound-albeit politically unpopular-decision. For starters, rather than concede the elementary premise of this lawsuit-that it is a denial of equal protection to make statutory protections available to different-sex couples, who may obtain them by getting married, but to categorically deny them to same-sex couples, who are not able to get married-the Attorney General instead attempts to justify and prolong this institutionalized discrimination being perpetrated by the State of Montana against a discrete minority of its citizens.*fn3 Frankly, the State's

arguments in this regard are inconsistent and difficult to follow. On one hand, the State concedes that the Legislature could provide committed intimate same-sex couples with similar benefits as are afforded to different-sex married couples. Yet, on the other hand, the State suggests that any benefits provided to different-sex married couples cannot also be provided to same-sex couples due to the Marriage Amendment. This reasoning is clearly a non sequitur for reasons discussed in greater detail in the Marriage Amendment section below. See ¶¶ 174-179, infra. For the time being, it suffices to point out that the Marriage Amendment merely states: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state." And, as noted, Plaintiffs are not asking that their relationships be recognized as "marriage." Furthermore, the Marriage Amendment does not require the State to grant married couples tax benefits, or the right to make medical decisions for a spouse, or the right to death benefits under the workers' compensation laws, etc. Nor does it say that these sorts of benefits and protections, if the State chooses to grant them, may not also be offered to unmarried persons. The State concedes that the Legislature could enact a civil-union or domestic-partnership scheme.

¶64 Perhaps for these reasons, the State ultimately takes the position that Plaintiffs' constitutional claim should not be decided at all. The reason: a ruling in Plaintiffs' favor could result in the invalidation of "innumerable" unspecified statutes. Yet, surely the fact that Plaintiffs are being discriminated against in "innumerable" ways is reason to hasten a decision on the merits of their claim, not delay it. Regrettably, however, a majority of this Court defers to the Attorney General's approach. Instead of requiring the State to demonstrate the constitutionality of its practices, the Court punts. The Court implies that Plaintiffs are to blame-that their failure to "specifically identify" and "specifically analyze" the "specific statutes" that are discriminatory somehow precludes us from declaring Plaintiffs' rights. Opinion, ¶¶ 9, 11, 13. How the Court expects Plaintiffs to present their claim is not entirely clear from the Court's opaque analysis. But a careful inspection reveals the Court's rationale to be entirely disingenuous in any event.

¶65 First of all, Plaintiffs have identified numerous statutes which grant benefits and protections to different-sex spouses but not to same-sex partners. Indeed, after observing in its Order that "Plaintiffs are denied a variety of benefits and protections that are statutorily available to heterosexual spouses," the District Court lists a slew of those statutes. Furthermore, Plaintiffs attached a laundry list of the discriminatory statutes to their motion to alter or amend the judgment. That list is attached as Appendix 1 to this Dissent. If what the Court needs is a specific statute to analyze, the Court can simply pick one of the numerous statutes identified in the District Court's Order or in Plaintiffs' list, and assess its validity in light of the parties' arguments. The constitutional principles of the Court's analysis could then be extrapolated and applied to other statutes.

¶66 Secondly, if the Court is suggesting that Plaintiffs may not obtain a declaratory ruling until they have specifically identified every single discriminatory statute, it appears entirely likely that the extensive list of statutes attached to Plaintiffs' motion to alter or amend the judgment is, in fact, a listing of every single discriminatory statute. If that is what the Court needs, then the Court need look no further than Plaintiffs' motion, which is contained in the District Court record. More importantly, however, the Court has cited no authority whatsoever for requiring Plaintiffs to identify all of the discriminatory statutes. In fact, as I discuss in further detail below, the Uniform Declaratory Judgments Act enables Plaintiffs to obtain a declaration of their rights in a single lawsuit, without necessarily identifying each and every discriminatory statute.

¶67 Thirdly, if the Court is suggesting that Plaintiffs must challenge each statute on an individual basis, the Court has cited no authority for this approach either. Indeed, one purpose of the Uniform Declaratory Judgments Act is to avoid such seriatim litigation. As Plaintiffs reminded the District Court in their motion to alter or amend the judgment, they sought declaratory relief "in part to avoid this type of expensive and protracted litigation that would drain judicial resources while prolonging the harm experienced by Plaintiffs and their families." Cf. McGillivray v. State, 1999 MT 3, ¶¶ 9-11, 293 Mont. 19, 972 P.2d 804 (concluding that declaratory relief was the only "reasonable remedy" where, absent such relief, only those plaintiffs who had "the financial resources and personal fortitude to endure four different court proceedings" would be able to exercise their claimed constitutional right, while those plaintiffs "who will not or cannot afford this extensive litigation would be denied their right"). Indeed, forcing Plaintiffs to challenge each of the "innumerable" statutes in piecemeal fashion is not only manifestly unfair to them, it is an enormous waste of resources, given that the underlying legal question is the same with respect to each statute at issue. Montana taxpayers, who will have to foot the State's legal bills for defending each of these "innumerable" lawsuits, should be appalled by the Court's and the Attorney General's approach here.

¶68 I think it is worth noting that the Court's and the Attorney General's approach is completely out of step with other courts around the country-federal and state. For example, Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7, defines "marriage" as a legal union between one man and one woman, and defines "spouse" as a person of the opposite sex who is a husband or a wife. Although these definitions have "varying impact on more than a thousand federal laws," the Second Circuit Court of Appeals did not require the plaintiff to specifically identify those laws. Windsor v. United States, 699 F.3d 169, 180 (2d Cir. 2012). To the contrary, the court proceeded to analyze her equal protection claim and concluded that "homosexuals compose a class that is subject to heightened scrutiny," that the class is "quasi-suspect" and thus subject to "intermediate scrutiny," and that "DOMA's classification of same-sex spouses was not substantially related to an important government interest." Windsor, 699 F.3d at 185, 188. Similarly, despite DOMA's "ramifying application throughout the U.S. Code" and its "effects on the numerous federal programs at issue," the First Circuit Court of Appeals did not require the plaintiffs to identify the "economic and other benefits" impacted by DOMA. Massachusetts v. U.S. Dept. of Health and Human Servs., 682 F.3d 1, 5, 13 (1st Cir. 2012). The court simply analyzed the constitutionality of excluding same-sex couples and concluded that "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest." Massachusetts, 682 F.3d at 16.

¶69 In New Jersey, different-sex married couples are entitled to "a vast array of economic and social benefits and privileges." Lewis, 908 A.2d at 206. While same-seX couples enjoyed various rights under New Jersey's Domestic Partnership Act, they were still denied "many benefits and privileges" accorded to married couples. Lewis, 908 A.2d at 215. In other words, the Domestic Partnership Act "failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples." Lewis, 908 A.2d at 215. The New Jersey Supreme Court noted a number of the rights afforded to married couples but denied to same-sex couples. The court did not require the plaintiffs, however, to go back to the trial court and re-file their constitutional challenge to this scheme-like this Court does in the present case-as "specific" challenges to "specific" statutes. Rather, the court quite sensibly and logically explained that the constitutional question is "whether there is a public need to deny committed same-sex partners the benefits and privileges available to heterosexual couples." Lewis, 908 A.2d at 217. Ultimately, the court held that "denying to committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose." Lewis, 908 A.2d at 220.

¶70 The fact that there were "hundreds" of statutes relating to marriage and to marital benefits did not prevent the Supreme Judicial Court of Massachusetts from ascertaining whether the exclusion of same-sex couples from those benefits violated the state constitution. Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941, 955 (Mass. 2003). The court noted some of the statutory benefits in its opinion, but saw no need "to be comprehensive." Goodridge, 798 N.E.2d at 955. The Hawaii Supreme Court also saw no such need. In considering the same-sex couples' constitutional challenge, the court observed that "a multiplicity of rights and benefits" are contingent upon the status of marriage, but the court found it "unnecessary . . . to engage in an encyclopedic recitation of all of them." Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993).

¶71 The Vermont Supreme Court likewise had no difficulty analyzing the legality of excluding same-sex couples from the "broad array of legal benefits and protections incident to the marital relation, including access to a spouse's medical, life, and disability insurance, hospital visitation and other medical decisionmaking privileges, spousal support, intestate succession, homestead protections, and many other statutory protections." Baker, 744 A.2d at 870. The court did not require the plaintiffs to specifically identify and specifically analyze the specific statutes. Rather, the court addressed the question common to each: "whether the exclusion of same-sex couples from the benefits and protections incident to marriage under Vermont law" is unconstitutional. Baker, 744 A.2d at 880. The court ultimately found "a constitutional obligation to extend to plaintiffs the common benefit, protection, and security that Vermont law provides opposite-sex married couples." Baker, 744 A.2d at 886.

¶72 I could continue, but I think the point is clear. In refusing to issue a declaratory ruling as to Plaintiffs' constitutional rights, and in forcing them to instead litigate each statutory protection individually, this Court sets itself up as the only court in the country to follow such an approach. In so doing, the Court commits grievous error.

¶73 The instant case is no different than the cases cited above. "Marriage" in Montana is presently defined as "a personal relationship between a man and a woman arising out of a civil contract." Section 40-1-103, MCA. Marriage between two persons of the same sex is prohibited. Section 40-1-401(1)(d), MCA; Mont. Const. art. XIII, § 7. Hence, by definition, a person cannot be the "spouse" of someone who is the same sex. Black's Law Dictionary 1533 (Bryan A. Garner ed., 9th ed., Thomson Reuters 2009) (spouse: "a married person"). The State grants a broad array of legal benefits and protections to "spouses." As but one example, § 37-19-904(2)(c), MCA, grants the surviving "spouse" the right to control the disposition of the remains of a deceased person. Same-sex couples are excluded from the operation of these statutes because, by definition, they cannot be "spouses" and because they are not encompassed within the scope of the statutes in some other way. See e.g. § 45-5-206, MCA (for purposes of partner or family member assault, "partners" means "spouses, former spouses, persons who have a child in common, and persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex" (emphasis added)). Plaintiffs' claim here is the same as the challengers' claims in the above cases: excluding same-sex couples from the opportunity to obtain the protections of these laws is unconstitutional.

¶74 As detailed in the Declaratory Judgment section below, there is simply no basis in law or in reason for requiring Plaintiffs to present their constitutional claim within the context of a challenge to a specific spousal benefit, or for requiring them to pursue independent challenges to each benefit, or for requiring them to identify all of the discriminatory laws. The notion that they must "specifically identify" and "specifically analyze" each of the "innumerable" statutes is, in reality, nothing more than a straw-man argument that the Attorney General has invented, and this Court has adopted, to avoid a socially divisive issue. I cannot believe that if the statutes discriminated on the basis of race, national origin, or religious affiliation, rather than sexual orientation, the Court would concoct such an implausible procedural technicality as the Court does here to evade a legitimately presented constitutional question and deny the plaintiffs relief.

¶75 For all of these reasons, the Court's contention that it cannot issue a ruling on Plaintiffs' constitutional rights is devoid of any genuine or well-grounded underpinning. And so is the Court's suggestion that Plaintiffs still need "to develop an argument as to . . . the level of constitutional scrutiny that should be applied to [the discriminatory] laws by the courts." Opinion, ¶ 13. Plaintiffs devote entire sections of their briefs to this exact question, arguing that sexual orientation is a suspect class and that the denial of statutory benefits and obligations based on sexual orientation should be subject to heightened scrutiny. It is not clear whether the Court has overlooked these sections of Plaintiffs' briefs, or simply chosen to ignore them, but the argument is there. Perhaps the Court's view is that the level of scrutiny varies from statute to statute depending on "the nature of the State's interest." Opinion, ¶ 13. That, however, would be quite the novel approach to constitutional law. Indeed, I am aware of no precedent, from any court in this country, holding that the level of scrutiny-rational basis, middle tier, or strict-is determined not by the classification or the constitutional right at issue, but by "the nature of the State's interest" in discriminating against the class or infringing the right. Such an approach turns equal protection and due process analysis on its head.

¶76 If the reader is baffled by what the Court is requiring of Plaintiffs, he or she is not alone. As a purely factual matter, there is no dispute that the State, by statute, makes certain benefits and obligations available to different-sex couples but denies same-sex couples access to those same benefits and obligations. The legal question common to every challenge Plaintiffs might lodge against these statutes is whether, under our Constitution, the State may categorically exclude homosexuals and bisexuals in committed intimate same-sex relationships from the opportunity to obtain the same statutory protections made available to heterosexuals and bisexuals in committed intimate different-sex relationships. There is no persuasive, let alone legitimate, reason why we cannot issue a ruling on this question. Even assuming, for the sake of argument, that "the nature of the State's interest" in excluding same-sex couples varies from statute to statute, this does not preclude us from declaring what Plaintiffs' rights are under traditional constitutional principles. We can rule-and I would rule-that sexual orientation is a suspect class and, therefore, that the State's interest in denying same-sex couples the opportunity to obtain the statutory protections offered to different-sex couples must be "compelling." Such a ruling is permitted by the Uniform Declaratory Judgments Act, and it would adequately resolve this dispute. At that point, the legislative and executive branches could take whatever steps are necessary to honor Plaintiffs' civil rights-as legislative and executive officers are constitutionally sworn to do (Mont. Const. art. III, § 3)-in accordance with our decision.

¶77 The Court tells Plaintiffs that they may amend their complaint and pursue further proceedings in the District Court. Opinion, ¶ 13. While this at least has the virtue of rescuing their claims from the District Court's outright dismissal, I cannot agree that this remedy is adequate. To the contrary, refusing to declare Plaintiffs' constitutional rights forthwith, and sending them back to the District Court for unnecessary re-litigation of a constitutional question they have squarely presented to us in the instant appeal, is itself an infringement of those rights. It must not be forgotten that "[t]he rights here asserted are, like all such rights, present rights; they are not merely hopes to some future enjoyment of some formalistic constitutional promise. The basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled." Watson v. City of Memphis, 373 U.S. 526, 533, 83 S. Ct. 1314, 1318 (1963) (rejecting the City's request for further delay in meeting its constitutional obligation under the Fourteenth Amendment to desegregate its public parks and other municipal recreational facilities). Likewise, under Montana law, the courts of this State (including the Montana Supreme Court) are courts of justice. Section 3-1-101, MCA. "Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person[.] . . . Right and justice shall be administered without sale, denial, or delay." Mont. Const. art. II, § 16. This fundamental constitutional right is not simply access to courts. It is access to justice-defined in Montana's organic law to mean a speedy remedy, to every person, for every injury of person, without delay.

¶78 Thus, as a matter of federal constitutional law and Montana constitutional law, Plaintiffs are entitled to a prompt determination of their constitutional rights vis-a-vis the State of Montana's admitted practice of making benefits and protections available to different-sex couples while categorically denying them to same-sex couples. Plaintiffs are also entitled to prompt rectification for any violations of these rights. Watson, 373 U.S. at 533, 83 S. Ct. at 1318 ("any deprivation of constitutional rights calls for prompt rectification"); Mont. Const. art. II, § 16 ("speedy remedy" shall be afforded for every injury). "It is axiomatic that 'justice delayed is justice denied.' " State ex rel. Carlin v. Fifth Jud. Dist. Ct., 118 Mont. 127, 135, 164 P.2d 155, 159 (1945); cf. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S. Ct. 2166, 2178 (1988) ("Perpetual litigation of any issue . . . delays, and therefore threatens to deny, justice."); Kloss v. Edward D. Jones & Co., 2002 MT 129, ¶ 58, 310 Mont. 123, 54 P.3d 1 (Nelson, Trieweiler, Leaphart, & Cotter, JJ., specially concurring) ("Constitutional rights that cannot be enforced are illusory. It is as if those rights cease to exist as legal rights."). Evading and delaying a decision on the merits of Plaintiffs' constitutional claims, and requiring them to file seriatim challenges to "innumerable" statutes-each with the same, common legal issue-denies Plaintiffs access to justice just as clearly and as surely as if we had simply padlocked the courthouse doors. No class of litigants should be burdened with the emotional, financial, and time-related costs of this approach. No class of litigants should be treated in this draconian fashion. Our decision today makes a mockery of this Court's supposed commitment to access-to-justice principles. See In re the Estab. of an Access to Just. Commn., No. AF 11-0765 (Mont. May 22, 2012).

¶79 In light of the foregoing, I believe that rather than affirmatively protect Plaintiffs' civil rights as they are sworn to do, the Attorney General, the Legislature, and now, sadly, a majority of this Court have instead denied these persons justice and wrongly prolonged the State's discriminatory practices. In requiring Plaintiffs to jump through procedural hoops that we have never imposed on any other minority group, and in thus delaying the vindication of their constitutional rights, the Court conveys that gay, lesbian, and bisexual Montanans cannot expect to receive fairness, justice, respect, and equal treatment from Montana's courts. As I said at the outset, this is a black day for civil rights in Montana.

ΒΆ80 I now turn to a detailed discussion of the law supporting my conclusion that declaratory ...


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