The Montana Supreme Court
Montana High Court: Revise Domestic-Partnership Case

By Trudy Ring

Originally published on Advocate.com December 20 2012 7:43 PM ET

The Montana Supreme Court has sent a case on domestic-partnership rights back to a lower court, telling plaintiffs their argument is too broad and must be narrowed.

The Montana chapter of the American Civil Liberties Union had sued the state in 2010 on behalf of six same-sex couples, saying the denial of inheritance rights, tax benefits, medical decision-making power, and other rights violated constitutional guarantees of equal protection under the law. The ACLU asked the Supreme Court to grant a declaratory judgment to that effect.

In a 4-3 ruling issued Monday, the court said that request was too sweeping and would create uncertainty among state legislators, and therefore ordered the plaintiffs to identify specific laws that discriminate against gay couples and take those arguments to the trial court.

“It’s a detour. It’s not a defeat,” ACLU legal director Jon Ellingson told the Missoula Independent. He said the organization has “some work to do to decide strategically which [statutes] we think best illustrate the injustice of the disparate treatment.”

Justice James Nelson wrote a dissent in the case, saying, “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.” He also said, “I have never disagreed more strongly with the Court” than in this case and that the decision “wrongly deprives an abused minority [of] their civil rights.”