WHITEFISH (AP) — State prosecutors are appealing a Lincoln County justice court judge's ruling that Montana's domestic violence law has a "gross flaw" that discriminates against heterosexuals.
Judge Stormy Langston wrote in her Aug. 7 ruling that the state's partner/family member assault law defines a "partner" as a person in a heterosexual relationship. Because of the definition, an offender in a homosexual relationship would have to be charged with a crime that carries a lesser penalty.
"This classification does not consider those engaged in homosexual dating or ongoing intimate relationships, nor those who may have a child in common. Thus, leading to different treatment for different groups of persons, who are described by some suspect trait, namely, their sexual orientation," Langston wrote, according to the Whitefish Pilot (http://bit.ly/PeYgvy).
That different treatment is a violation of the Montana Constitution's equal protection provision and of the Fourteenth Amendment of the U.S. Constitution, defense attorney Tim Baldwin argued.
Baldwin argued that the state law discriminates against heterosexuals because it punishes them to a greater degree than homosexuals convicted of the same crime.
"The state can no more discriminate against the heterosexual class of persons than it can discriminate against the homosexual class of persons similarly situated," Baldwin wrote.
Baldwin was representing Dale James Miller, who was arrested May 12 and charged with partner/family member assault.
The law defines "partners" as spouses, former spouses, people with a child together and those in an intimate relationship with a person of the opposite sex. It carries a fine of up to $1,000 and a year in jail on conviction, and a third conviction can boost it to a felony punishable by up to five years in prison.
Baldwin said a homosexual accused of a similar crime would be charged with assault, which carries a penalty of up to six months in jail and a $500 fine upon conviction.
Langston agreed with Baldwin's argument. She dismissed the charge against Miller and called the law flawed.
"This court does not believe that there is any rational basis for the distinction of "opposite sex" in the partner definition," Langston wrote. "It appears that while the legislature was trying to preserve its traditional and historical views of opposite sex relationships, it instead created a gross flaw in the statute."
Lincoln County deputy attorney Joseph Cik said Thursday that his office is appealing the case, and an initial hearing has been set for Sept. 10 before Judge Jim Wheelis in Libby.
"The state's argument is, he being a heterosexual is not harmed by this statute in a way that constitutionally gives him the right to contest it," Cik said.
He declined further comment.
Baldwin is a Republican running for a state House seat representing the Whitefish area against Democrat Ed Lieser.
Baldwin is the son of Chuck Baldwin, a Baptist minister and former 2008 Constitution Party presidential candidate who briefly ran for lieutenant governor on a ticket with Bob Fanning in this year's GOP gubernatorial primary.
Information from: Whitefish Pilot, http://www.whitefishpilot.com