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Attorneys for seven gay couples are asking a Montana judge to rule, prior to going to trial, that they’re being discriminated against by the state because it’s not allowing them the same rights as married couples under Montana’s constitution.

In a motion for summary judgment filed in Lewis and Clark District Court Friday, the attorneys say the couples aren’t seeking to be married, but simply want the same relationship recognition and abilities afforded to man-woman couples with that status — like decision-making authority in health care and end-of-life situations, filing joint tax returns, and transferring assets if a partner dies without a will.

“The state can’t distinguish or give protections and benefits to one set of couples and deny it to another,” said Betsy Griffing, ACLU of Montana’s legal director. “With this motion, what we are saying is that we are entitled to judgment as a matter of law.”

Griffing added that Friday’s motion is in response to a move to dismiss the lawsuit filed in November by Attorney General Steve Bullock. He’s argued on behalf of the state that spousal benefits are limited to married couples, which is defined by the Montana Constitution as being between a man and a woman, and the court doesn’t have the authority to require the state to extend spousal benefits beyond that definition.

Griffing said they’re not trying to change the 2004 constitutional amendment in Montana that bars marriage for same-sex couples; they just believe that same-sex couples are being discriminated against by the state, and the 400 or so state statutes that provide relationship protection need to include same-sex relationships. They want the court to force the state to amend those statutes.

“The statutes that give protections and obligations to one set of couples, but deny such protections to another set of similarly situated couples, violate the fundamental fairness and teachings of equal  protection and privacy under the Montana Constitution,” the plaintiffs state in the lawsuit, “… this court should deny the defendant’s motion to dismiss and grant plaintiffs’ motion.”

Bullock’s office is reviewing the newest motion, but declined to comment further.

A hearing on the motions before District Judge Jeffrey Sherlock is set for Jan. 25, 2011. If the case proceeds to trial, the ACLU expects that to take place in July 2011, but noted it’s likely that the case will end up before the Montana Supreme Court in the next few years.

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The lawsuit, which was filed in July, alleges that the state’s failure to provide legal protections to same-sex couples is a violation of the Montana Constitution’s promises of privacy, dignity and the pursuit of life’s basic necessities and its equal protection and due-process guarantees. 

“In sum, when an individual chooses a same-sex life partner and enters into a committed, intimate relationship with that person, those decisions and later decisions and activity within the relationship are all protected by the Montana Constitution’s  fundamental rights to privacy, dignity and pursuit of life’s basic necessities, safety, health and happiness,” the attorneys stated in the lawsuit. “The state cannot selectively give protections to one set of couples who have ‘approved’ relationships, while denying those same protections to another set of couples whose constitutionally protected intimate relationships do not have the badge of such ‘approval’ without satisfying strict scrutiny.”

Plaintiffs include 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.

Reporter Eve Byron: 447-4076 or eve.byron@helenair.com

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