Donaldson and Guggenheim v. Montana - Q & A

Document Date: December 14, 2010

What is the American Civil Liberties Union hoping to accomplish through its lawsuit?
The ACLU is representing six same-sex couples who are in committed relationships and need access to the many legal protections that Montana provides to the families of different-sex couples, many of which are designed to help see families through times of crisis. These couples have brought a lawsuit charging that the State’s failure to provide legal protections to same-sex couples is a violation of the Montana Constitution’s promises of privacy, dignity and the pursuit of life’s basic necessities and its equal protection and due process guarantees. The goal of this lawsuit is to see that same-sex couples are able to protect their families with the same legal protections that different-sex couples are offered through marriage. Because there is a constitutional amendment in Montana barring marriage for same-sex couples, this lawsuit is not seeking marriage for same-sex couples in Montana.

How are same-sex couples harmed by being denied legal protections for their families in Montana?
Through marriage, opposite-sex couples receive hundreds of protections and obligations under state law, and hundreds more under federal law. This lawsuit, which is being brought in state court and is making state constitutional claims, only directly addresses protections under state law. It is these protections, however, that grant married couples some of their most important safeguards during times of greatest need. Under Montana law, it is possible for same-sex couples to be barred from visiting their partners in the hospital and left out of conversations about emergency medical care. Montana inheritance laws refuse to recognize same-sex couples, leaving surviving partners with nothing if their partners die without valid wills. Similarly, it is possible for surviving partners to be barred from making funeral arrangements. Denying same-sex couples legal protections can also have devastating effects on their children because they are denied the security of knowing that their parents have a legally recognized relationship with one another, setting them apart from many of their friends.

Will this lawsuit affect other same-sex couples in Montana besides the plaintiffs?
Yes. If the Montana courts agree with the ACLU that it is unconstitutional to deny samesex couples the legal protections and responsibilities that the state provides to married couples, all same-sex couples will be eligible for the legal protections.

How would same-sex couples become eligible for the legal protections and responsibilities?
We don’t know exactly. It is up to the Montana courts to determine the remedy. Courts in Vermont and New Jersey have decided similar cases, and the high courts in those states ultimately directed the state legislatures to come up with systems that ensured that same-sex couples were not denied any of the legal protections and responsibilities that were provided to married couples. In Vermont, the legislature created civil unions. In New Jersey, the legislature created domestic partnerships. Essentially the same except in name, the systems in both states allow all same-sex couples who meet the necessary requirements for marriage to register with the state to become eligible for protections and responsibilities.

What is the next step in the litigation?
The case has been assigned to District Court Judge Jeffrey Sherlock in Montana’s First Judicial District in Helena. The Montana Attorney General has responded to our original lawsuit with a motion for dismissal. We responded with a motion seeking summary judgment. A hearing on these motions is set for January 25, 2011. Should the case go to trial, that will happen in July 2011.

What does it mean that the Attorney General moved to dismiss our case?
Plaintiffs anticipated that the Attorney General, representing the State of Montana, would file this kind of motion. Plaintiffs recognize that the Attorney General believes that he has to take this position because of his general duty to defend the constitutionality of statutes, including the state statutes that exclude Plaintiffs from the protections and responsibilities that the state provides to different-sex couples who marry which we maintain are unconstitutional.

When will this case be resolved in the Montana courts?
It is very likely that this case will end up before the Montana Supreme Court in the next few years.

What is the Montana Supreme Court’s track record with regard to Lesbian, Gay, Bisexual and Transgender rights?
The Montana Supreme Court has a good record on LGBT issues. In 2004, the court ruled that it was unconstitutional for the state to deny employees of the University System equal employment benefits for their partners. In 2009, the court ruled that a lesbian must be treated as a mother to the two children that she raised with her partner of 10 years.

How can I stay informed about developments in this lawsuit?
The ACLU will post updates about the lawsuit as well as the legal documents on their websites. To stay informed, visit and

The voters approved an amendment to the Montana constitution barring same-sex couples from marriage. Is it unconstitutional for the state to recognize same-sex relationships?
No. In 2004, the voters approved an amendment that states “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.” This amendment in no way precludes the state from providing other forms of recognition for same-sex couples. In fact, most of the state’s constitution is devoted to protecting the rights of the Montanans and making sure that everyone is treated fairly, not taking rights away. We believe these constitutional guarantees will ultimately lead the Montana courts to find that it is unconstitutional for the state to deny same-sex couples protections for their families. Additionally, marriage is much more than protections and responsibility. It is an institution that is universally recognized and respected by nearly everyone. Anyone who says that civil unions and domestic partnerships are the same as marriage should ask themselves if they would be willing to swap their marriage for a civil union or domestic partnership.

Why aren’t you asking the courts for marriage?
Montana has a constitutional amendment that bars marriage for same-sex couples. We are bringing this lawsuit now because, as the plaintiffs in the litigation illustrate, families are suffering real harm without access to vital legal protections domestic partnerships would provide.

If this lawsuit is successful, will this require religious organizations to recognize same-sex couples?
No. We are not asking people to change their religious beliefs. The First Amendment protects the right of people of faith to organize themselves according to their own beliefs and traditions. This guarantees that religious organizations can never be forced to recognize same-sex couples, either through civil unions, domestic partnerships, or marriages, just as the Catholic Church can never be forced to marry or recognize the marriages of couples who have been divorced, and Jewish rabbis can never be forced to marry people outside the Jewish faith. However, there are many religious organizations that welcome same-sex couples and willingly perform same-sex commitment services.

What about those people who say that their religious beliefs are threatened by the marriages of same-sex couples?
The United States Constitution has very robust religious freedom protections. Religious organizations and their followers cannot and should not be asked to change their religious views. In fact, religious organizations often have views that differ from the law. Divorce, birth control and the death penalty are just a few examples of issues where the law may not conform to the religious beliefs of some people.

Who is the legal team?
This lawsuit is being litigated by Betsy Griffing, Legal Director of the ACLU of Montana; Elizabeth Gill, a staff attorney with the ACLU Lesbian Gay Bisexual Transgender Project; James Goetz and Ben Alke of the law firm Goetz, Gallik & Baldwin P.C.; and Ruth Borenstein and Neil Perry of the law firm Morrison & Foerster LLP.

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