Donaldson v. Montana

Brief Filed: 11/11
Court: Montana Supreme Court
Year of Decision: 2012

Read full-text amicus brief (PDF, 93KB)


Because there is a constitutional amendment in Montana barring marriage for same-sex couples, this lawsuit is not seeking marriage. The couples in the suit are seeking the protection of state-recognized domestic partnerships (i.e., a finding under the state constitution’s other provisions, such as its guarantees of equal protection and privacy, that denial to same-sex couples of the rights and benefits that accrue to married different-sex couples is unconstitutional).

Index Topic

Sexual Orientation (Discrimination)


In this case, six same-sex couples seek a ruling that they are entitled to the same protections, rights and benefits as different-sex couples who are married under Montana law. Montana has adopted a constitutional amendment defining marriage as between a man and a woman. This case does not challenge that amendment but rather seeks a finding under the state constitution’s other provisions, such as its guarantees of equal protection and privacy, that denial to same-sex couples of the rights and benefits that accrue to married different-sex couples is unconstitutional.

This case is a test case for what may be a new wave of civil rights cases for same-sex couples in those states where recognition of marriage has been barred for same-sex couples but equal protection and other rights accrue from other parts of the state constitution. Montana was selected for this test case for several reasons. The Montana Supreme Court has had a good track record on LGBT issues, with three good decisions on LGBT rights in the last 15 years: a 1997 decision striking down the state’s criminal sodomy law (pre-Lawrence); a decision in 2000 finding that the state university system had to extend its employee benefits to same-sex domestic partners; and a 2005 decision upholding parenting rights for a non-biological mother.

While the legal issues are somewhat different than in the same-sex marriage briefs APA has filed and continues to file in other states where the constitution does not expressly ban marriage for same-sex couples, the research applicable to this case is essentially similar to that presented in those briefs as well as cited in APA policy positions. Because this appeal is a matter of right, there is no specific question(s) before the court on appeal, but rather all issues addressed in the lower court opinion are potentially open to reexamination depending on how the plaintiffs/appellants present their case. The Montana case raises novel legal issues: can a same-sex couple assert an equal protection or privacy claim under the state constitution where there is an express ban on their marriage, and can a court direct the legislature to enact legislation providing for the benefits of marriage to same-sex couples (as did the courts in New Jersey and Vermont where there was no such constitutional ban in place) when the state constitution limits marriage to different-sex couples. Notably in Alaska, where the state does have a ban on marriage of same-sex couples, the court has ruled that the equal protection argument under the state constitution is nonetheless available to plaintiffs. The case also involves the reasons why a finding that the legislature should assure equal protection would be justified. Thus, the plaintiffs have included evidence and argument about the value of relationship recognition, the dignity and stigmatic harms of exclusion for such recognition, etc.

APA’s Position

APA’s brief in support of the plaintiffs/appellees was joined by the Montana Psychological Association, and filed on November 18, 2011. The brief presents the scientific research regarding the nature of homosexuality, the nature of relationships of committed same-sex partners, the parenting capabilities of gay and lesbian parents, the effect on children and other relevant research. This body of research has been presented by APA many times since 2004 with periodic updating. The brief concludes by stating that there is no scientific basis for denying same-sex couples and their families the rights, benefits and burdens conferred by recognizing their relationships.


On Dec. 17, 2012, the Montana Supreme Court upheld the district court’s decision granting the state’s motion to dismiss an action that sought a declaratory judgment regarding the Montana Constitution’s applicability to benefits and protections allegedly denied to individuals living in same-sex partnerships, but remanded the action to the district court to allow plaintiffs a chance to amend their complaint.

A majority of the Montana Supreme Court ruled that the district court’s decision was not an abuse of discretion. The four members noted that “the plaintiffs chose to pursue an overly broad request for a declaratory judgment and injunctive relief, without developing a factual record in the district court and without identifying a specific statute or statutes that impose the discrimination they allege.” The majority signed an order returning the case to the district court to allow the parties to amend their complaint.

The dissenting three justices indicated they would grant the relief requested and enter a declaratory judgment that Montana law imposes a discriminatory statutory structure that prohibits plaintiffs from enjoying significant relationship and family protections and obligations automatically provided to similarly-situated different-sex couples who marry.