HomeMy WebLinkAboutResolution No. 4291, Supporting the relief sought in Donaldson et al. v. State of Montana.pdf
Commission Memorandum
REPORT TO: City Commission
FROM: Jeffrey K. Krauss, Mayor, City of Bozeman
SUBJECT: Resolution No. 4291, supporting the relief sought by the same sex
couples in Donaldson et al. v. State of Montana.
MEETING DATE: September 27, 2010
MEETING TYPE Action
RECOMMENDATION: Approve Resolution No. 4291, supporting the relief sought by the
same sex couples in Donaldson et al. v. State of Montana.
BACKGROUND: On July 22, 2010, seven committed same-sex couples filed suit against the
State of Montana for failing to provide legal protections to same-sex couples and their families in
violation of the Montana Constitution’s rights of privacy, dignity and the pursuit of life’s basic
necessities and its guarantees of equal protection and due process.
The city of Bozeman has previously shown their commitment to fundamental rights for all, most
recently with the approval of Resolution 4217 in 2009 and Resolutions 4243 and 4250 in 2010.
Resolution 4217 declared that “All are welcome here” and supports diversity and inclusiveness.
Resolution 4243 declared that the city of Bozeman will not discriminate in employment and
benefits on the basis of sexual orientation and/or gender identity. Resolution 4250 adopted a
policy prohibiting discrimination in the entering into and implementation of contracts and
agreements.
The attached resolution is an effort to continue to show support for everyone’s rights to enjoy the
same statutory and constitutional rights and obligations.
ALTERNATIVES: Do not approve Resolution No. 4291.
Make amendments to Resolution No. 4291, then approve.
Memorandum compiled by AK
Attachments:
Resolution No. 4291
Compliant for Injunctive and Declaratory Relief: Donaldson, Guggenheim et al. v. State of Montana
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COMMISSION RESOLUTION NO. 4291
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN
MONTANA SUPPORTING THE RELIEF SOUGHT BY THE SAME SEX COUPLES IN
DONALDSON ET AL. V. STATE OF MONTANA, FILED IN THE MONTANA FIRST
JUDICIAL COURT, LEWIS AND CLARK COUNTY.
WHEREAS, fourteen individuals (seven couples) in committed, intimate, and long term
same-sex relationships, including a lesbian couple and a gay couple working and/or residing in
the City of Bozeman, have brought suit to be afforded the same statutory and constitutional
rights and obligations that are accessible to different-sex couples through the legal status of
marriage, and
WHEREAS, under current Montana law same-sex couples cannot obtain the significant
relationship and family protections and obligations automatically provided to similarly situated
different-sex couples who marry, and
WHEREAS, although the “marriage amendment” in the Montana Constitution (Art.
VIII, Sect. 7) precludes same sex marriages it does not preclude same sex couples from having
the same fundamental rights of equal protection, individual dignity, privacy, due process and the
pursuit of life’s basic necessities guaranteed to all Montanans under the Montana Constitution’s
Declaration of Rights, and
WHEREAS, same sex couples are denied the basic legal rights of different sex couples
to succession of property upon the death of a spouse, employment rights, tax benefits, health
insurance, rights to visitation in the event of illness, health care decisions, fish and game law
licensing, and many more, and
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Resolution No. 4291, Supporting Relief Sought by Same Sex Couples in Donaldson et al. v. State of Montana
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WHEREAS, the City of Bozeman is a political subdivision of the State of Montana, and
WHEREAS, the City of Bozeman has already recognized the constitutionality of equal
treatment for same sex couples and has passed resolutions requiring equal treatment regardless of
sexual orientation in its own personnel practices and by those with whom it contracts for goods
and services, and
WHEREAS, of the seven couples, two are same sex couples working and/or residing in
the City of Bozeman.
NOW THEREFORE BE IT RESOLVED, that the City Commission and the Mayor
support the relief sought by the same sex couples in Donaldson et al. v. State of Montana, filed
in the Montana First Judicial Court, Lewis and Clark County.
NOW FURTHER, BE IT RESOLVED, that the City Clerk forward signed copies of
this resolution to the Attorney General and Governor of the State of Montana.
___________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_____________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
____________________________________
GREG SULLIVAN
City Attorney
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James H. GoetzBenjamin J. AlkeGoetz, Gallik & Baldwin, P.C.35 North GrandP.O. Box 6580Bozeman, Montana 597 7 I -6580Ph: (406) s87-0618Fax: (406) 587-5144E-mail : gqetzlawfi rm@ goetzlawfi rm. comBetsy GriffingLegal Program Director of MontanaAmerican Civil Liberties Union FoundationP. O. Box 9138Missoula, MT 59802Ph: (406) 830-3009Fax: (406) 529-3106Ruth N. Borenstein (Pro Hac Vice Pending) Elizabeth O. Gill (Pro Hac Vice Pending)Philip T. Besirof (Pro Hac VicePending) LGBT & AIDS ProjectNeil D. Perry (Pro Hac Vice Pending) American Civil Liberties Union Foundationi'il.ir.,. ilË_ffii,ÞfL[ --'i NZllt "i!i. 2 2 ,4, lr' 0 ]Morrison & Foerster LLP425 Market StreetSan Francisco, California 9 41 05Ph: (4ls) 268-7000Fax: (415) 268-7522ATTORNEYS F'OR PLAINTIFFS39 Drumm StreetSan Francisco, CA 94111Ph: (4Is) 621-2493Fax: (415)255-8437MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY{JAN DONALDSON and MARY ANNEGUGGENHEIM, MARY LESLIE ANdSTACEY HAUGLAND, GARYSTALLINGS and RICK V/AGNER, KELLIEGIBSON and DENISE BOETTCHER, JOHNMICHAEL LONG ANd RICHARD PARKER,NANCY OWENS and MJ V/ILLIAMS, andCASEY CHARLES and DAVID V/ILSON,Plaintiffs,vs.STATE OF MONTANA,Defendant.CauseNo. Í{¡ )i,' /i- il. ,,,L,Hon. #Ëfr:ír;ii;ï: ivi ;:;; ;;;,ii..._.r,.iCOMPLAINT FOR INJUNCTIVE ANDDECLARATORY RELIEF'57
Plaintiffs Jan Donaldson and Mary Anne Guggenheim, Mary Leslie and StaceyI{augland, Gary Stallings and Rick Wagner, Kellie Gibson and Denise Boettcher, John MichaelLong and Richard Parker, Nancy Owens and MJ Williams, and Casey Charles and David Wilson(collectively "Plaintiffs") bring this action against Defendant the State of Montana, and allege asfollows:INTRODUCTIONL Plaintiffs are fourteen lesbian, gay, or bisexual individuals who comprise sevencouples in committed, intimate, same-sex relationships. Plaintiffs are residents of the State ofMontana who have fallen in love with life partners, and, with those partners, established familiesthat provide Plaintiffs with long-term mutual emotional and economic support and a stableenvironment for raising children. Plaintiffs are highly accomplished and productive citizenswho, in their desire to protect their family relationships, in no way differ from their heterosexualneighbors, co-workers, and fellow community members.2. The State of Montana offers committed, intimate, different-sex couples the abilityto obtain numerous protections, rights, and benefits, as well as to undertake numerous duties,responsibilities, and obligations toward one another, in the form of a statutory structure that isaccessible through the legal status of marriage. The significant protections and obligationsprovided to different-sex couples through this statutory structure not only strengthen different-sex couples' ability to support each other and their children, but also help facilitate for different-sex couples and their families the life challenges that all families may face, including thosesurrounding illness, death, or separation.3. Regardless of their commitment to their life partners or their desire and need toprotect their familial relationships, under current Montana law, same-sex couples cannot obtainthe significant relationship and family protections and obligations automatically provided tosimilarly-situated different-sex couples who marry. Under the Montana Constitution, same-sexcouples are barred from entering into the legal status of marriage in Montana. Nor does Montanaprovide any alternative statutory structure such as the domestic partnership or civil unionsystems adopted by a number of other states that would permit similarly-situated same-sexcouples the ability to obtain the numerous relationship and family protections and obligationsthat are available to different-sex couples through the legal status of marriage.-2-58
4. Plaintiffs are not challenging the legality of the "maniage amendment," ArticleXIII, SectionT of the Montana Constitution, which defines "marriage" as being between a manand a woman. By this suit, Plaintifß do not seek the opportunity to marry nor do they seek thedesignation of "marriage" for their relationships. While the maniage amendment precludesPlaintiffs from marying, it does not abrogate the fundamental rights shared by all Montanans,including Plaintiffs, under Article II of the Montana Constitution. Plaintiffs simply seek thesame opportunity to obtain the statutory protections and obligations that are offered by the Stateto different-sex couples and their families through the legal status of marriage.5. All Montanans, including Plaintiffs, are guaranteed the right to equal protection ofthe law under Article II, Section 4 of the Montana Constitution. The categorical exclusion ofMontanans such as Plaintiffs from the protections and obligations afforded similarly-situateddifferent-sex couples who have the opportunity to marry deprives Plaintiffs and their families ofequal protection under the law in that the exclusion constitutes unconstitutional discriminationbased on sexual orientation and unconstitutionally burdens the Plaintiffs' fundamental rights toprivacy, dignity, and the pursuit of life's basic necessities.6. The exclusion of Plaintiffs from any legally recognized and protected same-sexrelationship and family status violates the fundamental rights of same-sex couples, includingPlaintifß, by burdening and interfering with their rights to privacy, dignity, and the pursuit oflife's basic necessities, which are guaranteed under Article II, Sections 10, 4, and 3 of theMontana Constitution, respectively.7. The exclusion of Plaintiffs from any legally recognized and protected same-sexrelationship and family status is arbitrary and therefore denies Plaintiffs' right to due process inviolation of Article II, Section 17 of the Montana Constitution.8. Plaintiffs seek a declaratory judgment declaring that the State's failure to providethem and their families the opportunity to access the statutory protections and obligations that theState offers to similarly-situated different-sex couples and their families denies Plaintiffs equalprotection and violates their rights to privacy, dignity, the pursuit of life's basic necessities, anddue process under the Montana Constitution.9. Plaintiffs also seek an injunction prohibiting the State from continuing to denyPlaintiffs and their families the ability to obtain the numerous relationship and family protectionsand obligations available to different-sex couples and their families through marriage, and--J-59
requiring the State to offer same-sex couples and their families a legal status and statutorystructure that confers the protections and obligations that the State offers to different-sex coupleswho many, but not the status or designation of marriage.PARTIESJan Donaldson and MarI¡ Anne Guggenheim10. Plaintiffs Jan Donaldson and Mary Anne Guggenheim are individuals who are ina committed, intimate, same-sex relationship and who reside together as domestic partners inHelena, Montana.ll. Jan, who is 66, and Mary Anne, who is 74,met in the early 1980s and have beentogether as a couple for twenty-seven years. Jan and Mary Anne each have a son and daughterfrom previous marriages. When the couple moved to Montana together in 1983, they lived withtwo of the children, raising the children together and making parenting decisions together. Twoof Jan's and Mary Anne's children now have children of their own, and Jan and Mary Anne havebeen or will be proud and supportive grandparents to four grandchildren, one of whom died atbirth and one of whom is due in August. Jan and Mary Anne visit their grandchildren as often asthey can.12. Mary Anne is a retired pediatric neurologist. Before she moved to Montana,Mary Anne was a professor of pediatric neurology at the University of Colorado; on moving toMontana, she opened her own practice with Jan, a registered nurse. The joint practice thrived,and was in operation for over twelve years, running child neurology clinics in Billings, GreatFalls, and Kalispell. In 1998, Mary Anne was elected to the Montana House of Representativesas the representative for District 55, Lewis and Clark County. During the term she served in thestate legislature, Mary Anne sponsored a bill that was passed in the 1999 legislative session thatbars genetic discrimination by health insurance companies.13. Mary Anne now serves as a medical consultant to the Montana DisabilityDetermination Services and to the federal Vaccine Injury Compensation Program, and as a boardmember for the Montana Board of Medical Examiners and the Helena/Lewis and Clark CountyConsolidated Planning Board. After she retired from medical practice, Jan served as ExecutiveDirector of the Montana Chapter, American Academy of Pediatrics for five years, and sherecently started a job as an outreach coordinator for a nonprofit organization that works toprovide family support and education services for children with developmental delays or-4-60
disabilities. Jan is also the President of the Board of Montana Shares, a partnership of Montana-based nonprofit groups devoted to improving the quality of life in communities throughoutMontana.14. Jan and Mary Anne own their home together in joint tenancy with rights ofsurvivorship and contribute equally to the mortgage. They have a joint bank account and shareall living expenses. They have executed wills and powers of attorney and they have named eachother as beneficiaries on retirement accounts. Unlike a different-sex married couple, however,state law does not automatically protect their interests in each others' property and they remainconcerned that the legal steps they have taken will be inadequate to protect the remaining partnerwhen one of them dies.15. Jan and Mary Anne have committed to taking care of one another in sickness andin health, but they also worry that they when that commitment is most important, the law willprevent them from fulfilling it. Although the couple has executed health care directives and arecareful to try to bring copies wherever they go, they are worried that such precautions may notmatter in an emergency. This concern was borne out recently during Mary Anne's hipreplacement surgery when a doctor's assistant refused to speak with Jan because the assistant didnot have the appropriate release in his possession. Even though she had been in a committedrelationship with Mary Anne for over twenty-frve years, Jan was treated like a stranger.16. Jan and Mary Anne feel that they have committed to one another "in sickness andin health and for richer or for poorer" - like any long-term, different-sex married couple. Yetthey feel vulnerable, knowing that they do not have the opportunity to access the signifrcantprotections offered to different-sex couples who marry.Mary Leslie and Stacey Haueland17. Plaintiffs Mary Leslie and Stacey Haugland are individuals who are in acommitted, intimate, s¿une-sex relationship and who reside together as domestic partners inBozeman, Montana.18. Stacey, who is 44 and a certifìed professional midwife, and Mary, who is 47 and amanager of the MealSeafood Department at the Community Food Co-op, have been together asa couple for twelve years. In 2003, the couple held a commitment ceremony at Emerson Hall inBozeman to celebrate their relationship with over two hundred friends and family members. Atthe ceremony, all the guests signed a document in which Mary and Stacey declared their lifelong-5-61
commitment to one another, and that document, now framed, hangs prominently on their livingroom wall.19. Stacey and Mary own their home together in joint tenancy with rights ofsurvivorship and contribute equally to the mortgage. They have completely merged theirfinances since the commitment ceremony, and have executed wills, powers of attorney andhealth care powers of attorney, and they have named each other as beneficiaries on retirementaccounts. Stacey also has health insurance through Mary's job at the Co-op, which providesbenehts for domestic partners.20. Based on Mary's past experience, however, Stacey and Mary worry that their lackof a state-recognized relationship will leave them unprotected in times of greatest need. In 1995,Mary moved to Montana with her former partner, so that they could work as ski instructors atBig Sky Ski Resort. On their eighth anniversary, Christmas Day in 1996,}i4ary's former partnerwas killed in a tragic accident on Lone Peak, involving an avalanche control explosive.Although Mary and her former partner had, like Stacey and Mary have, taken legally availablesteps to try to protect their relationship, Mary found herself powerless in a number of essentialways following her former partner's death.21. Grief-stricken after the accident, Mary was denied access to her former partner'sremains, as the coroner explained that she had no legal relationship to her partner. Big Sky SkiResorl refused to give Mary bereavement leave. Because Mary's former partner did not leave awill and the state law that protects spouses in the event of intestacy could not apply, the family ofMary's former partner was able to take almost all of the partner's possessions, including half ofthe balance of a mutual fund account to which the couple had jointly contributed. The familyalso received the partner's Worker's Compensation Death benefits - money that by law goes tospouses, but not to the domestic partners of committed, intimate, same-sex couples. In addition,the family, unlike Mary, was able to seek damages against the ski resort through a wrongfuldeath suit, a legal recourse that was not available to Mary even though she had been in acommitted, intimate relationship with her partner for eight years. Without the cushion set up bythe state to protect spouses in just these kinds of circumstances, Mary was forced for financialreasons to sell the condominium she had owned with her former partner in a joint tenancy.22. Stacey and Mary feel very lucky to have found one another and to be together,and their relationship makes them feel safe, loved, and supported. They wish that the State of-6-62
Montana would rccognize their commitment to one another the way they and their family andfriends have recognized it, and offer them the protections and obligations that are offered todifferent-sex couples who marry.Gary Stallings and Rick Wagner23. Plaintifß Gary Stallings and Rick Wagner are individuals who are in acommitted, intimate, same-sex relationship and who reside together as domestic partners inButte, Montana.24. Gary, who is 59, and Rick, who is 54, have been together as a couple for 2I years,and they have lived in Montana since 1994. Rick has a Masters in social work, and for the pastthirteen years, he has been a Mental Health Crisis Response Therapist at the Westem MontanaMental Health Center. Gary worked in the insurance business for 23 years, until he contractedHIV and became too sick to work in the mid-1990s. Rick and Gary were very involved inraising Gary's three children from a previous marriage, and he and Rick regularly visit Gary'sdaughter and her children - their grandchildren. When he is well enough, Gary volunteers withthe Butte AIDS Support Services, and he and Rick both received Governor's awards for theirwork with the statewide Community Planning Group for HIV prevention, an organization withwhich they have been afflrliated for over ten years.25. Gary and Rick own their home together in joint tenancy with rights ofsurvivorship, and they equally contribute to the annual property taxes, having paid off themortgage. Gary and Rick also have a joint checking account and share all their living expenses.Rick has medical power of attorney for Gary, but the couple worries about being able to takecare of each other in an emergency. Gary's health has been extremely precarious over the years- he was given six weeks to live at one point in 1995 - and although Gary is stable now, Rickwas diagnosed with a serious spinal condition a few years ago, and the fear of a life-threateningmedical emergency is a real and constant concern for the couple.26. In 1997, Gary and Rick had a commitment ceremony at Freedom Point Pavilionin Sheep's Head Forest, which is north of Butte. They invited family and friends, and theceremony was performed by the minister at the United Church of Christ church they attend everyweek in Butte. They now say of each other that they "are one" and'Joined at the hip." Becausethe state does not recognize their relationship, however, Gary and Rick do not feel secure thatthey will be able to be there for each other when their support and love is most needed.-7-63
Kellie Gibson and Denise Boettcher27. Plaintiffs Kellie Gibson and Denise Boettcher are individuals who are in acommitted, intimate, same-sex relationship and who reside together as domestic partners inLaurel, Montana.28. Kellie, 46, and Denise, 45,have been together as a couple for eleven years, andthey celebrated their union in a commitment ceremony in 2001. Kellie, who grew up in GreatFalls, Montana, worked in juvenile justice until she was diagnosed with a rare brain conditionand had to go on social security disability in 2003. Denise is a middle school physical sciencesteacher and basketball coach, as well as the organist atthe couples' Lutheran congregation.29. Kellie and Denise are living with and parenting two children together - Kellie'sfour-year old nephew and Kellie's sixteen-year old daughter from a previous marriage - and thecouple is also close to Kellie's twenty-year old daughter, who lives with Kellie's ex-husband inBillings. Kellie's nephew moved in with the couple almost two years ago, after his parents, whoboth struggle with methamphetamine addiction, were sent to prison for forging checks and hadtheir parental rights terminated. Late last year, Kellie and Denise jointly adopted Kellie'snephew on the recommendation of the Child and Family Services Division of the MontanaDepartment of Public Health and Human Services, and, after years of neglect, their son is nowdoing well in a happy and stable home environment.30. Denise has named Kellie as the beneficiary on her retirement account, and theyhave each other's health care power of attorney. Given Kellie's very fragile health, however -she has had56 brain surgeries and over 300 spinal taps since her diagnosis ten years ago - theyare constantly anxious about how they will be treated in a medical emergency. Their fear - thattheir relationship will not be recognized when it matters the most - was made very real f'or thecouple in April of this year, when Kellie's father died and Denise's request for bereavementleave was denied. Under state law, spouses are granted ten days of bereavement leave for afamily member's death, but because the state does not recognize Kellie's and Denise'srelationship, Denise's employer did not have to grant her request.31. Kellie and Denise describe their relationship as sacred, and after all they havebeen through with respect to Kellie's health, they view every day with each other and theirchildren as a gift. Kellie and Denise only wish that the state would recognize the strong and-8-64
stable family unit they have created, as their extended family and church already have, andprovide them with the protections and obligations afforded to different-sex couples who marry.John Michael Long and Richard Parker32. Plaintiffs John Michael ("Mike") Long and Richard ("Rich") Parker areindividuals who are in a committed, intimate, same-sex relationship and who reside together asdomestic partners in Bozeman, Montana.33. Mike and Rich have been together as a couple for eight years. Mike, 56, grew upin Big Timber Montana, has a degree in microbiology, and has been a lab supervisor at BozemanDeaconess Hospital for five years. Rich, 40, received a degree in mechanical engineering after asix-year stint in the Navy (from which he was honorably discharged) and is now an engineer forthe Bozeman Public Schools.34. Together, Mike and Rich are raising Mike's seventeen-year old son from aprevious marriage who plays offensive guard and defensive tackle for his high school footballteam,loves playing the guitar, and is taking confirmation classes at the local Lutheran church.Mike and Rich make all of their parenting decisions together, and together attend parent-teacherconferences. Both are involved in the day-to-day aspects of their son's life, but Rich describeshimself more as the disciplinarian, especially when it comes to topic of homework. Richattended every one of their son's football games last year.35. Mike and Rich own their home together in joint tenancy with rights ofsurvivorship, and they contribute equally to the mortgage out of a joint checking account theymaintain for big expenses. They have named each other as beneficiaries on their retirementaccounts, and Rich has health insurance through Mike's job at the hospital, which providesbenefrts for domestic partners, Mike and Rich worry, though, that if something happens to oneof them, the legal steps they have taken will be insuffrcient to protect their relationship and theirrelationship with their son.36. Mike and Rich describe their relationship as being like"Ozzie and Harriet." Mikeand Rich want nothing more than for the state to recognize the stable family unit they alreadyhave - allowing them to support each other and raise their son with the same security provided todifferent-sex couples who marry.Nancy Owens and MJ Williams-9-65
37. Plaintifß Nancy Owens and MJ Williams are individuals who are in a committed,intimate, same-sex relationship and who reside together as domestic partners in Basin, Montana.38. Nancy and MJ met in Helena in the early 1980s, and then started dating in theearly 1990s; they have been together as a couple for almost eighteen years. Nancy, who hasPh.D. in Anthropology, teaches part time at the Graduate College, Union Institute andUniversity. MJ, a professional jazz trombone player, owns and runs a small music productioncompany and a mural painting company, she has been a volunteer firefighter, and she continuesto be involved in the Montana Artists Refuge, a community of professional artists that sponsorsart exhibitions, live performances and workshops, and fosters community awareness andparticipation in the arts, which she started over seventeen years ago. Nancy and MJ are also nowproud grandparents to Nancy's son's four children,39. Nancy and MJ own their home together in joint tenancy with rights ofsurvivorship, and they each contribute to the mortgage. They have executed health caredirectives, but they are very concerned that the paperwork they have filled out will beinsufficient for hospital access in emergencies and end-of-life decision-making. In 2001, Nancywas diagnosed with breast cancer. 'While she was undergoing treatment, Nancy was concernedthat the hospital might not share her information with MJ - even though they had been in anintimate, committed relationship for over ten years at the time. Although Nancy was able toconvince the hospital to share her information with MJ, the couple worries that another hospitalcould easily take a different approach. Nancy and MJ also worry about what would happen ifNancy passed away before MJ, and whether MJ would be able to afford to stay in their home.40. Nancy and MJ both feel very lucky to have each other and to be together. Giventheir long-term commitment to one another, they feel the state should recognize them as a familyand offer them the protections and obligations offered to different-sex couples who many.Case)' Charles and David Wilson4l. Plaintiffs Casey Charles and David Wilson are individuals who are in acommitted, intimate, sarne-sex relationship and who reside together as domestic partners inMissoula, Montana.42. Casey, 58, who has both a law degree and a Ph.D. in English Literature, is aProfessor of English at the University of Montana. David, 52, who is originally from Kalispell,Montana, is both an accomplished painter who has regular shows at two galleries and a high-10-66
school Spanish teacher. Casey and David have been together as a couple for eleven years, Forthe past ten years, the couple has had joint custody with David's ex-wife of David's daughter,Azulie, who is currently a dance major at the University of Montana. Azulie lived with Davidand Casey every other week, and along with David's ex-wife, David and Casey together made allparenting decisions about Azulie.43. Since they have been together, Casey and David have merged their finances, andpay all household expenses out of a joint checking account to which they both contribute.Although both Casey and David have executed wills naming each other beneficiary, as well ashealth care directives, they worry that if something were to happen to Casey, David's interest inthe life they have built together would not sufficiently be protected, and he might be forced tomove out of their home.44. Casey and David have also struggled with the lack of respect shown to theirrelationship. Casey and David were very close to Casey's mother, who passed away in Februaryof this year in her 90s. David took leave from his school to attend her funeral, but he felt hecould not tell the school whose funeral he was really attending because the law does notrecognize Casey's mother as part of David's "immediate family," as Casey and David'srelationship is not legally recognized.45. Casey and David describe their long-term commitment to one another asproviding security, intimacy, friendship, and a loving space in which to pursue their owninterests. They feel that they are in the kind of stable, committed, and intimate relationship thatthe state's mariage laws were designed to protect, and that it is therefore unfair that they do nothave the opportunity to access a safety net like that provided to different-sex couples who marry.Defendant46. The Defendant is the State of Montana.JURISDICTION AND VENUE47. This Court has jurisdiction over this action pursuant to the Montana DeclaratoryJudgments Act. Mont. Code Arur. $$ 27-8-l0l et seq. and27-19-l0I et seq.48. Venue in this action is appropriate in Lewis and Clark County pursuant to Mont.Code Ann. çç 25-2-126.GENERAL ALLEGATIONSThe History of Discrimination Asainst Gav. Lesbian. and Bisexual Montanans-11-67
49. Montana has a long history of purposefully subjecting gay, lesbian, and bisexualMontanans to unequal treatment under state law. Although gay, lesbian, and bisexual Montanansand their political allies have attempted to remedy this discrimination through the politicalprocess, they have been largely unsuccessful. With the exception of a single non-discriminationordinance that passed in Missoula in April 2070, no law has been enacted anywhere in the Stateof Montana that explicitly prohibits discrimination on the basis of sexual orientation.50. Indeed, members of the State Legislature have made hostile and disparagingpublic statements about lesbian, gay, and bisexual Montanans, and taken affirmative efforts todeny them equal treatment under Montana's laws. For example, in 1997 the Montana SupremeCourt declared unconstitutional the section of the Montana criminal code which made same-sexsexual relations a felony. Three "house-keeping" bills were subsequently introduced in the StateLegislature to take the voided law off the books in 1999, 2001, and 2003. Yet, despite the factthat the law was declared unconstitutional and thus unenforceable, all three of these bills failed,two in committee and the other on the floor of the House. State representative Verdell Jacksonof Kalispell publicly stated that he opposed the 2001 bill because keeping the criminal law on thebooks "protects me from propositions on the street."51. Further, the Montana State Legislature has failed to pass eight separate bills thatwould have added sexual orientation to the anti-discrimination protections under Montana'sHuman Rights Act. The Montana State Legislature also failed to pass nine separate bills thatwould have added sexual orientation to the hate crimes law in Montana. In almost everyinstance, the proposed legislation did not even reach the House or Senate floors, instead failingto make it out of either the House or Senate Judiciary Committee.52. Testimony submitted during the hearings for legislation pertaining to the rights oflesbian, gay, and bisexual Montanans is replete with misinformation, negative stereotyping, andoutright animus against lesbian, gay, and bisexual people. For example, unsubstantiatedtestimony on the association between homosexuality and violent sexual crime has been presentedin a number of the hearings. The sponsor of a 1995 bill to extend anti-discrimination protectionsto those targeted on the basis of sexual orientation had to explain that he wrote a definition ofsexual orientation into the bill because 'osome individuals are trying to confuse or add inpedophilia as part of sexual orientation."Montana's Unequal Relationshirr and Family Protection Scheme-12-68
53. Through the ofÍicially recognized family status of maniage, the State of Montanaoffers to different-sex couples and their families a wide array of statutory protections, rights, andbenefits, as well as duties, responsibilities, and obligations.54. Montana law prohibits Plaintiffs from entering into either a solemnized orcommon law marriage. The Montana Code prohibits "a marciage between persons of the samesex." Mont. Stat. Ann. $ 40-1-401(d). In 2004, the Montana electorate also approvedConstitutional Initiative 96, which added the following provision to the Montana Constitution:"[o]nly amarriage between one man and one woman shall be valid or recognized as marriage."Mont. Const. Art. XIII, $ 7.55. Current Montana law provides some limited protections for couples in committedand intimate same-sex relationships and their families, including that State employees andemployees of the County and City of Missoula may obtain health insurance benefìts for theirsame-sex domestic partners. Under Montana parenting law, a same-sex partner who isparticipating in the parenting of his or her partner's biological child may also have a legallyrecognized relationship with that child.56. Montana has not, however, extended fuller protections to committed and intimatesame-sex couples and their families, such as the domestic partnership, civil union, or othersystems currently or formerly in place in California, Colorado, Hawaii, Maine, Nevada, NewHampshire, New Jersey, Oregon, Washington, and Wisconsin, as well as numerous localgovernments. In 2005 and 2009, bills were introduced in the Montana State Legislature thatwould have established a legally recognized family status for same-sex couples, in the form ofcivil unions or domestic partnerships. The bill introduced in 2005 provided that "parties to acivil union have all the same benef,rts, protections, and responsibilities under law, whether theyderive from status, administrative rule, court rule, policy, common law, or any other source ofcivil law, that are granted to spouses in a marriage." The bill introduced in 2009 extendedcertain relationship and family protections and responsibilities confened on different-sex coupleswho marry to same-sex couples who register as domestic partners. Both bills failed to make itout of committee.The Harms of Montana's Unequal Relationship and Family Protection Scheme57. Plaintiffs and their families are harmed in numerous respects by their exclusionfrom the statutory protections, rights, and benehts, as well as duties, responsibilities, and- 13-69
obligations afforded under current Montana state laws exclusively to individuals in different-sexcouples who marry and their families.58. Plaintiffs are denied specific protections and obligations relating to, among otherthings, the incapacitation or death of a spouse, support for family finance, and other public safetynets and responsibilities attached to the status marriage, including the following:a. Plaintiffs are denied protections afforded married couples upon the deathof a spouse, such as intestacy rights permitting the surviving spouse to inheritautomatically from the deceased spouse's estate; the ability of the surviving spouse toelect a minimum percentage of the deceased's estate based on the length of the marriageeven if there is a will; the right of the surviving spouse to a homestead allowance; theright of the surviving spouse to file a wrongful death lawsuit when a spouse is killed; andpresumptions benef,rting spouses in the absence of a designated beneficiary for death anddisability benefits and life insurance policies.b. Plaintifß are denied protections afforded employee spouses to file for orreceive worker's compensation death benefits, even though as employees, they payinsurance premiums for workers' compensation benefits intended to provide protectionsto employees and their dependents if the employee is injured or killed on the job, andmay pay precisely the same taxes and insurance premiums as their co-workers.c. Plaintiffs are denied the financial safety net provided to spouses undernumerous tax laws, including the right to file jointly to reduce tax liability or to take aspousal exemption for a non-working spouse if filing separately; tax benefits related tothe ownership of real or personal property; and the ability to make greater tax deductiblecontributions to a Family Education Savings Trust.d. Plaintifß are denied family health insurance coverage and Plaintiffs maybe denied continuation of coverage provided to spouses of deceased public employees.e. Plaintifß may be denied sick leave afforded to spouses to tend to sickfamily members or to attend a family member's funeral.f. Plaintiffs may be denied the full benefit of dissolution laws that regulatethe separation and divorce process, protect the rights of both spouses, and determinecustody, visitation, support and other matters.-r4-70
g. Plaintiffs are denied the automatic right afforded to married couples tomake health care decisions for a spouse when the spouse cannot, including the right towithhold or withdraw life-sustaining procedures and the right to donate a spouse's organsand tissues, and Plaintiffs are denied the right afforded to spouses to have priority over allothers to become the court-appointed guardian for a spouse who becomes mentallyincompetent.h. Plaintiffs are denied the automatic right afforded to married couplesmake burial decisions and other decisions concerning the disposition and handlingremains of deceased spouses.Plaintifß are denied the opportunity to obtain hunting and fishing licensesfor their partners, a right afforded to spouses under fish and game laws.59. Additionally, many private entities in defining family members who are eligiblefor valuable benefìts be reference to the State's statutory scheme, which provides relationshipand family protections and obligations for different-sex couples who marry but not for similarly-situated same-sex couples. As a result, solely because they are in same-sex relationships,Plaintiffs may be excluded from other important family protections and obligations, such asemployer-provided health insurance for family members.60. By excluding Plaintiffs and their families from the kind of comprehensiverelationship and family recognition and protection offered to different-sex couples throughmarriage, the State perpetuates the social stigma and prejudice long-suffered by lesbian, gay, andbisexual individuals in Montana, that they and their relationships are inferior to heterosexualindividuals and heterosexual relationships.6L This exclusion also encourages discrimination against lesbian, gay, and bisexualMontanans, by both public and private actors. As described above, Plaintifß suffer distinctdignitary harms when they are forced to plead for recognition of their committed relationship,which is automatically granted to different-sex couples who marry. Even when Plaintiffs docontractually bind themselves to one another (through such vehicles as powers of attorney), theselimited legal bonds are routinely ignored and disrespected.toof- 15-71
VIOLATIONS OF THE MONTANA CONSTITUTIONCOUNT IDenial of Equal Protection Based on Sexual OrientationPursuant to Article II, Section 4 of the Montana Constitution62. Plaintiffs incorporate herein by reference the allegations made in all precedingParagraphs set forlh above.63. Article II, Section 4 of the Montana Constitution provides that "[n]o person shallbe denied the equal protection of the laws."64. Although the mániage amendment, Article XIII, Section 7 of the MontanaConstitution, precludes Plaintiffs from marrying, it does not abrogate their right to equalprotection of the laws under Article II, Section 4 of the Montana Constitution.65. As described above, although the State offers to different-sex couples theopportunity to access a statutory structure that provides relationship and family protections,rights, benefits, duties, responsibilities, and obligations through the legal status of mamiage, theState denies access to similar protections and obligations to similarly-situated same-sex couplesand their families.66. But for their sexual orientation and being in committed relationships with a same-sex partner, Plaintiffs are similarly situated in every material respect to the different-sex coupleswho are afforded the opporlunity to access the significant relationship and family protections andobligations currently associated exclusively with the legal status of marriage.67. The State's exclusion of Plaintiffs from the relationship and family protections,rights, benefits, duties, responsibilities, and obligations that the State offers to siniilarly-situateddifferent-sex couples through the legal status of marriage impermissibly subjects Plaintiffs tounequal treatment based solely on each Plaintiff s sexual orientation.68. As described above, gay, lesbian, and bisexual Montanans have been historicallyand purposefully subjected to unequal treatment and relegated to a position of politicalpowerlessness solely on the basis of their sexual orientation - a characteristic that bears norelation to their ability to perform in or contribute to society - and this State discrimination onthe basis of sexual orientation is suspect and demands a heightened level of scrutiny.69. The State's exclusion of same-sex couples from the relationship and familyprotections, rights, benefits, duties, responsibilities, and obligations that the State offers to-16-72
similarly-situated different-sex couples through the legal status of maniage violates Plaintiffs'fundamental rights of privacy, dignity, and the pursuit of life's basic necessities and demands aheightened level of scrutiny.70. The State's exclusion of Plaintiffs from the of relationship and family protections,rights, benefits, duties, responsibilities, and obligations that the State offers to similarly-situateddifferent-sex couples through the legal status of marriage is not even rationally related to thefurtherance of any legitimate state interest, let alone narrowly tailored to further a compellinggovernment interest, and thus violates the right to equal protection under the law as guaranteedby the Montana Constitution.COUNT IIDenial of the Rights to Privacy, Dignity, and Pursuit of Life's Basic NecessitiesPursuant to Article II, Sections 3, 4, and 10 of the Montana Constitution71. Plaintiffs incorporate herein by reference the allegations made in all precedingParagraphs set forth above.72. Article II, Section 10 of the Montana Constitution provides "the right ofindividual privacy is essential to the well-being of a free society and shall not be infringedwithout the showing of a compelling state interest."73. Article II, Section 4 of the Montana Constitution provides "the dignity of thehuman being is inviolable."74. Article II, Section 3 of the Montana Constitution provides "[a]ll persons are bornfree and have certain inalienable rights. They include . . . the rights of pursuing life's basicnecessities, enjoying and defending their lives and liberties, acquiring, possessing and protectingproperty, and seeking their safety, health and happiness in all lawful ways. In enjoying theserights, all persons recognize corresponding responsibilities."75. Although the marriage amendment, Article XIII, Section 7 of the MontanaConstitution, precludes Plaintiffs from marrying, it does not abrogate their rights to privacy,dignity, and the pursuit of life's basic necessities under Article II, Sections 3, 4, and 10 of theMontana Constitution.76. Each Plaintiff has the reasonable and actual expectation that the State will notunlawfully burden or interfere in his or her decision to enter into an intimate and committed-17-73
relationship and establish a family with the person of his or her choosing, and the State will notunlawfully burden or interfere with decisions about how to structure family relationships.77. The State's exclusion of Plaintiffs from the opportunity to access the relationshipand family protections, rights, benefits, duties, responsibilities, and obligations that the Stateprovides to different-sex couples who marry based solely on Plaintiffs entering into intimate andcommitted relationships and establishing families with same-sex partners violates each Plaintiflspersonal autonomy and his or her right to privacy and intimate association in violation of theprivacy guarantee in Article II, Section 10 of the Montana Constitution.78. In choosing to enter into intimate and committed relationships with same-sexpartners and to establish families with their partners, Plaintiffs have pursued and are enjoyinglives that are of meaning and value to them as individuals.79. The State's exclusion of Plaintiffs from the opportunity to access the relationshipand family protections, rights, benefits, duties, responsibilities, and obligations that the Stateprovides to different-sex couples who marry based solely on Plaintiffs entering into intimate andcommitted relationships and establishing families with same-sex partners degrades, demeans,debases, and trivializes the life choices Plaintiffs have made, thereby interfering with andburdening Plaintiffs' rights to basic human dignity as guaranteed by Article II, Section 4 of theMontana Constitution.80. Plaintiffs' committed and intimate relationships with their same-sex partners andthe families they have established with their partners are a way for them to pursue love,enjoyment, and happiness in their lives. As described above, Plaintiffs' ongoing safety, health,and happiness now significantly depend on their relationships with their partners and whetherthose relationships are legally recognized.81. The State's exclusion of Plaintiffs from the opportunity to access the relationshipand family protections, rights, benefits, duties, responsibilities, and obligations that the Stateprovides to different-sex couples who many based solely on Plaintifß entering into intimate andcommitted relationships and establishing families with same-sex partners denies Plaintiffs theopportunity to protect and take responsibility for their partners and their families, therebyinterfering with and burdening Plaintiffs' rights to pursue life's basic necessities, enjoying anddefending their lives and liberties, acquiring, possessing and protecting property, and seeking- 18-74
their safety, health and happiness in all lawful ways in violation of Aticle II, Section 3 of theMontana Constitution.82. The State's exclusion of Plaintiffs from the opportunity to access the relationshipand family protections, rights, benefits, duties, responsibilities, and obligations that the Stateprovides to different-sex couples who maffy based solely on Plaintiffs entering into intimate andcommitted relationships and establishing families with same-sex partners is not narrowly tailoredto further a compelling government interest, and thus violates the rights to privacy, dignity, andthe pursuit of life's basic necessities under the law as guaranteed by the Montana Constitution.COUNT IIIDenial of Right to Due ProcessPursuant to Article II, Section 17 of the Montana Constitution83. Plaintiffs incorporate herein by reference the allegations made in all precedingParagraphs set forth above.84. Article II, Section 17 of the Montana Constitution provides "[n]o person shall bedeprived of life, liberty and property without due process of law."85. Although the marriage amendment, Article XIII, Section 7 of the MontanaConstitution, precludes Plaintiffs from marrying, it does not abrogate their right to due process ofthe law under Article II, Section 17 of the Montana Constitution.86. The State's exclusion of Plaintiffs from the opportunity to access the relationshipand family protections, rights, benefits, duties, responsibilities, and obligations that the Stateprovides to different-sex couples who maffy based solely on Plaintiffs entering into intimate andcommitted relationships and establishing families with same-sex partners is arbitrary and violatesPlaintiffs' right to due process in violation of Article II, Section l7 of the Montana Constitution.87. The State's exclusion of Plaintiffs from the opportunity to access the relationshipand family protections, rights, benefits, duties, responsibilities, and obligations that the Stateprovides to different-sex couples who many - based solely on Plaintiffs having entered intointimate and committed relationships and established families with same-sex partners - is notrationally related to the furtherance of any state interest, let alone narrowly tailored to further acompelling government interest, and thus violates the right to Due Process under the law asguaranteed by the Montana Constitution.-r9-75
PRAYER FOR RELIEFWHEREFORE, Plaintiffs pray for:(l) A declaration that the State's failure to offer same-sex couples equal opportunityto obtain the protections and obligations that are available to different-sex couples through thelegal status of marriage violates Plaintiffs' right to equal protection under Article II, Section 4 ofthe Montana Constitution.(2) A declaration that the State's exclusion of same-sex couples from the opportunityto obtain the protections and obligations the State provides to different-sex couples who marryviolates Plaintiffs' right to privacy under Article II, Section 10 of the Montana Constitution.(3) A declaration that the State's exclusion of same-sex couples from the opportunityto obtain the protections and obligations the State provides to different-sex couples who marryviolates Plaintiffs' right to dignity under Article II, Section 4 of the Montana Constitution.(4) A declaration that the State's exclusion of same-sex couples from the opportunityto obtain the protections and obligations the State provides to different-sex couples who marryviolates Plaintiffs' right to pursue life's basic necessities under Article II, Section 3 of theMontana Constitution.(5) A declaration that State's exclusion of same-sex couples from the opportunity toobtain the protections and obligations the State provides to different-sex couples who marryviolates Plaintiffs' right to due process under Article II, Section 17 of the Montana Constitution.(6) An order enjoining the State from continuing to deny Plaintiffs and their familiesaccess to a legal status and statutory structure that confers the protections and obligations theState provides to different-sex couples who marry.(7) An order requiring the State to offer same-sex couples and their families a legalstatus and statutory structure that confers the protections and obligations that the State providesto different-sex couples who marry, but not the status or designation of marriage.(8) An order awarding Plaintiffs their costs and their reasonable attorneys' fees.(9) An order awarding such other and further relief as the Court deems just andproper.-20-76
Dated this22nd day of July,2070.andMORRISON & FOERSTER LLPRuth N. BorensteinPhilip T. BesirofNeil D. PenyAMERICAN CIVIL LIBERTIES LTNIONFOI-INDATION, LGBT & AIDS ProjectElizabeth O. GillAMERICAN CIVIL LIBERTIES T]NIONFOLTNDATIONBetsy Griffing, Legal Program Director of MontanaATTORNEYS FOR PLAINTIFFSamsd H. Goe|zBenjamin J. Alke-21-77