HELENA — A Montana judge abdicated his responsibility when he dismissed a lawsuit by six gay couples seeking the same legal benefits as married couples, the American Civil Liberties Union said Monday in an appeal to the state's highest court.
The six couples, barred from marrying under the state's voter-approved constitutional definition of marriage as between a man and a woman, aren't asking for the right to wed. Instead, they say they want to be able to make decisions like married couples about their families' health care, finances, inheritance and burials.
They say the state is unconstitutionally denying them those benefits even though they are in committed relationships. They asked a district judge earlier this year to declare the current state law unconstitutional and order the law fixed.
The state attorney general's office had argued Montana can't extend spousal benefits to gay couples because those benefits are limited to married couples by definition since voters in 2004 approved the marriage amendment. The Legislature is free to create a new, separate class for couples regardless of sexual orientation, state prosecutors said.
District Judge Jeffrey Sherlock wrote in dismissing the lawsuit that a ruling to force state lawmakers to write new laws would be an inappropriate breach of the separation of powers between the three branches of government.
The ACLU wrote in its filing to the Supreme Court on Monday that courts have a responsibility to analyze whether a legislative action or inaction violates an individual's constitutional rights.
"A court abdicates this responsibility when it reflexively invokes separation of powers to refuse to undertake" such an analysis, the ACLU brief reads.
Niki Zupanic, public policy director for the ACLU of Montana, said Sherlock never ruled on the constitutionality question; he just ruled that he couldn't order the Legislature to make changes. Zupanic said the court exists to answer those questions of constitutionality across all branches of government.
"Courts make those decisions involving other branches of the government all the time," Zupanic said. "For the court to simply make a determination that these state laws are unconstitutional, that is important for the state of Montana."
The attorney general's office declined comment Monday. Its response to the Supreme Court is tentatively scheduled for Dec. 14.