Montana constitution guarantees health benefits for same-sex partners.

The Montana University System must offer health insurance benefits to domestic partners of its gay and lesbian employees, as it does to spouses of its heterosexual employees, the Montana Supreme Court has ruled. The court held that denying coverage to employees' same-sex partners violates their equal protection rights under the Montana Constitution. (Snetsinger v. Montana Univ. Sys., No. 03-238, 2004 WL 3015672 (Mont. Dec. 30, 2004).)

Carol Snetsinger and Carla Grayson are employees of the Montana University System; each has a same-sex domestic partner. The system offers benefits to employees' spouses as well as to opposite-sex partners who sign an "affidavit of common law marriage"--but same-sex partners do not qualify for benefits. Snetsinger, Grayson, their domestic partners, and the nonprofit organization PRIDE, Inc., filed a suit against the university system in 2002. The defendant filed a motion to dismiss, which the district court granted and the Montana Supreme Court reversed in a 4-3 decision.

"This is the first time a state high court has ordered an institution to provide benefits to same-sex partners," noted James Esseks, litigation director of the American Civil Liberties Union's Lesbian and Gay Rights Project, which brought the lawsuit on the plaintiffs' behalf.

Justice Jim Regnier wrote for the majority that "although the university system maintains that its [benefits] system is 'inherently rational' because it is based on the Montana marriage statutes, we conclude the policy is inherently flawed. The policy allows unmarried opposite-sex couples, who may only have a fleeting relationship, to receive health insurance benefits by signing an affidavit."

In an amicus brief, the National Legal Foundation, a religious public-interest law firm, said that allowing same-sex partners these benefits would in effect equate marriage with same-sex relationships. However, the court said, "despite assertions by the university system, common law marriages are not automatically recognized [when heterosexual partners sign their affidavit]. The university system's policy creates no such marriage, nor should it."

The three dissenting justices said the court should not have considered the affidavit issue because it was not included in the complaint.

"The problem is that Montana does not recognize same-sex marriages," Chief Justice Karla Gray wrote in a dissenting opinion. "Under the law--whether we like it or not--these couples are not eligible for marriage in the state of Montana whether by solemnization, declaration, or common law. I cannot join in the court's creation of the artificial construct of 'unmarried opposite-sex and unmarried same-sex couples' for purposes of resolving this appeal."

The majority held that marital status is not the defining difference. "In truth, unmarried opposite-sex couples are able to avail themselves of health benefits under the university system's policy while unmarried same-sex couples are denied the health benefits," Regnier wrote. "These two groups, although similarly situated in all respects other than sexual orientation, are not treated equally and fairly."

Ed Kramer, a Cleveland attorney and former chair of ATLA's Civil Rights Section, said the court could have gone further. "What disappoints me about the Montana Supreme Court decision--though it's not surprising-is that the majority based their decision on very narrow grounds of equal protection," so it is not likely to have a huge effect.

Esseks noted that because most states do not recognize common law marriage, "there is a relatively small number of states where this could even happen." Other Montana institutions that use affidavits like the university system's are governed by the Snetsinger decision, he said. However, Kramer noted that "institutions could avoid the impact of the decision by simply rewriting their provisions.

Kramer praised a concurring opinion by Justice James Nelson, noting that it "helps give an idea of how to approach this in the future and to establish some legal precedent."

Nelson wrote, "Historically, the mantle of equal protection law has expanded steadily to protect different groups of persons who were prosecuted and abused for simply being who they were born to be--racial and religious minorities and women are examples." He added, "However much equal protection jurisprudence has enlarged the scope of persons guaranteed this right, unfortunately gays and lesbians have been left behind."

"While I would have loved to have seen Justice Nelson's concurring opinion be the majority opinion," Kramer said, "this doesn't mean it's not legally significant for Montana and potentially significant for American society."

He noted that civil rights advocates should look to state constitutions that, like Montana's, have broader equal protection provisions than the federal Constitution. "Snetsingerdoes indicate that part of our strategy has to be dual-track in that we cannot ignore--as we often have in the past--state constitutional provisions because we find the federal courts to be much more sympathetic to civil rights.

"In the face of the new federal judiciary, we must go back to states and look at state provisions and state precedent in an attempt to persuade them to go where, unfortunately, the federal courts have not been willing to go to guarantee equal rights for all citizens," Kramer said.