Montana ACLU Announces Lawsuit to Overturn Ban on Gay Marriage

Court documents are laid on a table prior to an American Civil Liberties Union press conference in Helena, Wednesday, May 21, announcing a lawsuit to combat Montana's same-sex marriage ban.

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A federal judge has struck down Montana’s ban on same-sex marriage, making it the 34th state to allow gay marriage.

In his order filed in U.S. District Court in Great Falls on Wednesday afternoon, Judge Brian Morris ruled that Montana’s constitutional ban violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

Morris wrote that his order takes effect immediately.

“Montana no longer can deprive plaintiffs and other same-sex couples of the chance to marry their loves,” Morris wrote in the order.

Montana Attorney General Tim Fox said he will appeal Morris’ decision in light of conflicting federal court decisions and “no final word” from the U.S. Supreme Court.

“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 in a statement.

Four couples, including Bozeman’s Ben Milano and Chase Weinhandl, filed a lawsuit in May asking a federal judge to overturn the state’s ban on gay marriage.

The suit was filed in May by Milano and Weinhandl; Angie Rolando, 37, and Tonya Rolando, 33, of Great Falls; Shauna Goubeaux, 43, and Nicole Goubeaux, 35, of Billings; and Sue Hawthorne, 49, and Adel Johnson, 44, of Helena.

“I’m speechless,” Weinhandl said Wednesday afternoon. “I couldn’t be happier. It’s a perfect, clear day in Bozeman and an amazing day overall. This is awesome.”

“We’re super excited that now our marriage is recognized,” Milano said. “We’re just really excited.”

The plaintiffs are represented by American Civil Liberties Union of Montana Legal Director Jim Taylor as well as Bozeman attorneys Jim Goetz and Ben Alke, among others.

The suit was filed against Fox, Department of Revenue Director Mike Kadas and Cascade County Clerk of Court Faye McWilliams.

Following a ruling last month by the U.S. 9th Circuit Court of Appeals that legalized same-sex marriage in Nevada and Idaho, the plaintiffs filed a motion for summary judgment, asking Morris to rule on their suit.

Morris’ order comes about a month after the U.S. Circuit Court of Appeals struck down same-sex marriage bans in Nevada and Idaho. Until Wednesday, Montana was the only state in the 9th Circuit to have a ban.

“The time has come for Montana to follow all the other states within the 9th Circuit and recognize that laws that ban same-sex marriage violate the constitutional right of same sex-couples to equal protection of the laws,” Morris wrote.

In his decision, Morris said the plaintiffs in the case came from diverse points across Montana.

“They represent different walks of life that range from public employees, to military veterans, to retail managers, to marketers, to healthcare workers. They spend their free time engaged in activities that thousands of Montana families enjoy. These couples recreate in the beautiful outdoors that Montana offers. They cheer for their favorite teams at local sporting events. They practice their faiths freely as guaranteed by our constitution.”

And like many Montana families, many same-sex couples have children, Morris said.

“These families, like all of us, want their children to adventure into the world without fear of violence; to achieve all that their talent and perseverance allows without the fear of discrimination; and to love themselves so that they can love others,” Morris wrote.

“No family wants to deprive its precious children of the chance to marry the loves of their lives.”

Morris pointed out that his decision overturns a Montana constitutional amendment approved by 67 percent of voters in 2004.

“This court recognizes that not everyone will celebrate this outcome,” Morris wrote.

But Morris went on to say that the U.S. Constitution “exists to protect disfavored minorities from the will of the majority.”

Taylor said that the case, which he said moved “very quickly” through federal court, was about “equality and basic fairness.”

“The courts have recognized that there is no legitimate basis on which to deny the right to marry to committed same-sex couples,” Taylor said.

Several same-sex couples made their way to the Gallatin County Clerk of District Court's office, on the third floor of the Law and Justice Center on Wednesday afternoon in the hopes of obtaining a marriage certificate.

Staff, waiting on the state to update its online marriage forms, politely turned them away for the time being, taking down their names so they could be contacted when the office is ready.

“We’re happy to marry them,” said Clerk of District Court Jennifer Brandon, noting that she wants to avoid changing things like “bride” and “groom” on marriage certificates with white-out.

Patrick Donnelly and Ben Bahnsen said they’d been waiting for the moment they knew was coming once Judge Morris had vacated a hearing to hear arguments in the suit.

The two have been together for three years and have been engaged for two. They said they wished they had the opportunity to do things at a more leisurely pace like heterosexual couples but don't want to miss out if Morris’ ruling is overturned. So they decided to try to get a marriage license while they can, with the plan to do a ceremony later.

“We worry that this is a brief window,” Donnelly said.

“It’s finally happened,” Bahnsen said, noting that they had discussed going to a place that had previously legalized same-sex marriage but decided against it.

“We want to be married in our state,” he said.

The ACLU of Montana will be hosting marriage celebrations at cities across Montana, including in Bozeman at the Law and Justice Center from 8 a.m. to 12:30 p.m. today. The organization plans to have officiants on hand for couples who want to marry immediately.

Chronicle reporter Eric Dietrich contributed to this story.

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Whitney Bermes can be reached at or 582-2648. Follow her on Twitter at @wabermes.

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