Montana AG Tim Fox
Montana AG Tim Fox

Don’t look now, but we’re quickly running out of states where we can grouse about not being treated as equals under the law. Marriage equality should be starting any minute now — if it hasn’t already — in Montana, the last state in the Ninth Circuit to get the freedom to marry.

There’s still some question about whether Montana Attorney General Tim Fox will appeal the decision. It would be pretty pointless for him to do so, since every single court he could turn to at this point has indicated that marriages can go ahead. But he might still try.

This was going to be a slightly more drawn-out process. A judge had scheduled oral argument in the state for yesterday, but then cancelled it after the Ninth Circuit overturned marriage bans in neighboring Nevada and Idaho. Apparently, Judge Brian Morris had heard all he needed to hear, because he issued a ruling today that’s pretty fantastic. Here are some of the best points that he made:

Antigay Lawyers Need to Stop Saying that Marriage is None of the Court’s Business

Antigay attorneys love to rely on the Baker case, in which a 1972 dismissal from the U.S. Supreme Court stated that marriage equality wasn’t a federal issue. That was 42 years ago, and a lot has changed since then. Nevertheless, state attorneys keep bringing it up to try to persuade courts that they shouldn’t weigh in; and courts keep shooting that argument down.

” Baker no longer precludes consideration of challenges to the constitutionality of laws that prohibit same-sex marriage,” Judge Morris wrote.

Discrimination is Discrimination Even if You Say it Isn’t

Incredibly, Montana tried to claim that its gay marriage ban doesn’t single out gays and lesbians. “Defendants contend that these facially neutral laws apply with equal force to all persons,” Morris wrote.

But that’s obviously not true. “Montana’s laws that ban same-sex marriage likewise discriminate on the basis of sexual orientation,” he concluded.

Gays Get Heightened Scrutiny

This isn’t new — the Ninth Circuit has afforded a higher level of scrutiny to laws impacting LGBTs since last year. But it’s nice to see lower courts abiding by that decision, rather than finding some loophole and trying to squirm out of it.

“The Ninth Circuit previously had determined that rational basis review should apply to classifications based on sexual orientation,” Morris wrote, but now “This Court must evaluate Montana’s ban on same-sex marriage using the heightened scrutiny analysis. ”

Marriage Bans are Pointless

“Defendants fail to put forth any persuasive argument that the discriminatory means employed by these laws relate substantially to the achievement of any important governmental objectives,” Judge Morris writes. That’s about as clear as a judge could possibly be on the topic! You law is dumb, Montana, and you should feel bad.

Morris heavily cites the previous Idaho and Nevada case, known as Latta. In that case,  he writes, “The defendants also argued that permitting same-sex marriage will encourage opposite-sex couples to opt-out of marriage. The defendants argued that a father who sees a child being raised by two women will decide that it is unnecessary for his children to have a father. The court disparaged this proposition as a ‘crass and callous view of parental love.'”

Gay Parents are Awesome

Judge Morris gets poetic at the end of his ruling:

These families want for their children what all families in Montana want. They want to provide a safe and loving home in which their children have the chance to explore the world in which they live. They want their children to have the chance to discover their place in this world. And they want their children to have the chance to fulfill their highest dreams.


Stop Dicking Around and Start Marrying

Some courts have stayed their decisions regarding marriage so that anti-gay lawyers have time to appeal. Judge Morris has no time for that nonsense. “The Court PERMANENTLY ENJOINS the State of Montana and its officers, employees, agents, and political subdivisions from enforcing [the ban],” he writes. “This injunction shall take effect immediately.”


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