Montana’s attorney general has asked a judge to throw out a lawsuit filed by seven gay couples seeking the same rights as married couples in making decisions about their families’ health care and finances.

Spousal benefits are limited by definition to married couples, and the Montana Constitution defines marriage as being between a man and a woman, Attorney General Steve Bullock said.

The court does not have the authority to require the state to extend spousal benefits beyond that definition, Bullock said in a motion to dismiss the case.

“Courts may not exercise the power to enact laws and revise, alter or amend the constitution,” Bullock said. Such

policymaking power belongs to the Legislature and the people of the state, he added.

District Judge Jeffrey Sherlock has set a Jan. 25 hearing on Bullock’s motion to dismiss the case.

The American Civil Liberties Union, which represents the seven gay Montana couples in the lawsuit, said the couples aren’t challenging the 2004 initiative that added the marriage definition to the state constitution.

But the ACLU claims the state is violating other parts of the constitution — the right to equal protection, privacy and dignity — by denying gay couples in committed relationships the legal protections enjoyed by married couples.

The plaintiffs are asking Sherlock to impose an injunction that requires the state to give gay couples the legal status and statutory framework that gives them those protections.

ACLU of Montana legal director Betsy Griffing said the marriage amendment should be more narrowly construed than the way Bullock is interpreting it.

“It doesn’t provide an exception to the other rights (in the constitution), especially the right to privacy and equal protection,” Griffing said.

The ACLU plans to respond to Bullock’s motion to dismiss by Dec. 10.

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Among the benefits the 14 plaintiffs are seeking are inheritance rights, the ability to make burial decisions for their spouses, the right to file joint tax returns, the ability to make health care decisions for a spouse and legal protection in cases of separation and divorce.

Besides claiming the court lacks jurisdiction, Bullock also argued in the motion filed Oct. 31 that the couples’ relationship interests are already protected through “a variety of other legal arrangements already available to them.”

The couples themselves say they are highly accomplished and productive citizens with families, Bullock said. “They have done so under the laws as they currently stand,” he added.

He also said the injunction being sought is unprecedented and has no basis in law.

Making gay couples go through “all those extra hoops is exactly the type of unfair treatment we say is unconstitutional,” Griffing said.

A trial date has been set for June 27 if Sherlock allows the case to proceed.

The plaintiffs are Jan Donaldson and Mary Anne Guggenheim of Helena; Kellie Gibson and Denise Boettcher of Laurel; Gary Stallings and Rick Wagner of Butte; Nancy Owens and M.J. Williams of Basin; Mike Long and Rich Parker of Bozeman; Stacey Haugland and Mary Leslie of Bozeman; and Casey Charles and David Wilson of Missoula.

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