November 19, 2014 at 5:03 pm EDT | by Chris Johnson
Judge strikes down Montana ban on same-sex marriage
Adel Johnson, Sue Hawthorne, Shauna Goubeaux, Nicole Goubeaux, Ben Milano, Chase Weinhandl, Angie Rolando, Tonya Rolando, Montana, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade

Clockwise from left, plaintiffs Adel Johnson and Sue Hawthorne, Shauna and Nicole Goubeaux, Ben Milano and Chase Weinhandl, and Angie and Tonya Rolando. (Photos courtesy of the ACLU)

Montana’s ban on same-sex marriage is unconstitutional based on judicial precedent governing the state, a federal judge ruled Wednesday.

In an 18-page decision, U.S. District Judge Brian Morris, an Obama appointee, struck down the state’s prohibition on same-sex marriage on the basis of an earlier decision in favor of marriage equality by the U.S. Ninth Circuit Court of Appeals, which has jurisdiction over Montana.

“No family wants to deprive its precious children of the chance to marry the loves of their lives,” Morris writes. “Montana no longer can deprive Plaintiffs and other same-sex couples of the chance to marry their loves.”

Applying heightened scrutiny, or a greater assumption a law is unconstitutional, to Montana’s ban on same-sex marriage, Morris writes that state officials defending the marriage ban in court failed under that standard “to justify the discrimination engendered by the Montana laws that ban same-sex marriage.”

“These couples recreate in the beautiful outdoors that Montana offers,” Morris writes. “They cheer for their favorite teams at local sporting events. They practice their faiths freely as guaranteed by our Constitution.”

Taking a page from the decision written by U.S. Associate Justice Anthony Kennedy’s ruling against the Defense of Marriage Act, Morris places significant emphasis on the impact Montana’s marriage laws have on same-sex couples with children.

“These families want for their children what all families in Montana want,” Morris writes. “They want to provide a safe and loving home in which their children have the chance to explore the world in which they live. They want their children to have the chance to discover their place in this world. And they want their children to have the chance to fulfill their highest dreams.”

The decision brings the tally of states with marriage equality to 35. Morris writes the injunction included as part of his order takes effect immediately, so same-sex couples should be able to marry in Montana without any further delay.

According to the Williams Institute at the University of California, Los Angeles, the ruling opens up the possibility of marriage to 1,348 cohabiting same-sex couples living in Montana. An estimated 22 percent of these couples are raising 600 children in their homes.

Montana Attorney General Tim Fox, a Republican who was defending the state’s marriage law, vowed in a statement shortly after the decision was handed down to appeal.

“It is the attorney general’s sworn duty to uphold and defend Montana’s constitution until such time as there is no further review or no appeal can be made in a court of law,” Fox said. “Fulfilling that duty, the state of Montana will appeal this ruling in light of the fact that there are conflicting federal court decisions and no final word from the U.S. Supreme Court.”

Montana Gov. Steve Bullock, a Democrat, on the other hand hailed the decision, saying his administration would work to implement it as quickly as possible.

“Today’s decision ensures we are closer to fulfilling our promise of freedom, dignity, and equality for all Montanans,” Bullock said. “It is a day to celebrate our progress, while recognizing the qualities that bind us as Montanans: a desire to make a good life for ourselves and our families, while providing greater opportunities to the next generation.”

The litigation, Rolando v. Fox, was filed in May by the American Civil Liberties Union on behalf of four same-sex couples in Montana and alleged Monday’s ban on same-sex marriage violates the Fourteenth Amendment of the U.S. Constitution.

“This case is about equality and basic fairness,” ACLU of Montana Legal Director Jim Taylor said. “The courts have recognized that there is no legitimate basis on which to deny the right to marry to committed same-sex couples. All Montanans have an equal right to the legal protections and respect that marriage brings. This ruling takes that constitutional principle of equal protection and makes it a reality in Montana.”

One plaintiff couple in the case sought to marry in Montana, but the remaining four were wed out-of-state and sought recognition of their union in the Treasure State.

Angie Rolando, one of the plaintiffs in the case, said succinctly in a statement on the ruling: “Love won today.”

“Calling Tonya my partner, my significant other, my girlfriend, my perpetual fiancée has never done justice to our relationship,” Rolando said. “Now I can look forward to the day when I can introduce Tonya as my wife.”

Montana’s constitutional ban on same-sex marriage, known as Initiative 96, was approved by 67 percent of voters at the ballot in 2004.

The judge had initially scheduled a hearing in the case for Thursday, but those arguments were cancelled in the week before Morris issued his decision against Montana’s marriage law.

Evan Wolfson, president of the LGBT group Freedom to Marry, also praised the ruling, but said the job isn’t done until the U.S. Supreme Court issues a ruling making marriage equality the law of the land nationwide.

“This ruling, in keeping with nearly every other court that has ruled in more than a year, brings us to 35 states with the freedom to marry — but we are not done until we end marriage discrimination in all 50 states,” Wolfson said. “It’s time for the Supreme Court to affirm the freedom to marry nationwide and bring our country to national resolution for all loving and committed couples in every state.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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