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Mont.'s Gay Marriage Ban Struck Down by Federal Judge

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By Mark Wilson, Esq. on November 19, 2014 3:20 PM

Montana today became the 34th state to permit same-sex marriage after a federal district judge found the state's prohibition on gay marriage unconstitutional.

For those keeping score at home, it's now one federal circuit and two district courts in favor of same sex marriage bans, as opposed to four circuits and over 30 district courts against.

Get With the Times, Man

As you might expect, the outcome at the district court level is wholly derivative of the Ninth Circuit's opinion in Latta v. Otter, where a three-judge panel found same-sex marriage prohibitions in Idaho and Nevada unconstitutional earlier this year. The ruling is binding in the Ninth Circuit, though it didn't specifically address Montana's 2004 legislation.

The Sixth Circuit's opinion notwithstanding, another federal court determined that Baker v. Nelson is deader than a doornail. The Montana court here dismissed the defendants' contention that there's no federal controversy. Latta found Baker essentially overruled in light of Windsor, Lawrence, and Romer, and this court agreed.

Also implicit in the court's discussion of Baker was a "get with the times" sentiment: "Montana now stands as the lone state in the Ninth Circuit to prohibit the marriage of same-sex couples and to prohibit the recognition of same-sex marriages that validly have taken place in other jurisdictions." The fact that so many other states have overturned same sex marriage bans suggests that Baker is gone, gone, gone.

The Result Is Inevitable

Of course, from there it's a short step to deciding that same-sex marriage bans unfairly discriminate against same-sex couples. The only possible point of controversy was the court's application of Latta's "heightened scrutiny" to the marriage bans. Not every court has done so, using rational basis review instead, because Justice Kennedy is notoriously cagey about articulating the standard of review for sexual orientation discrimination. Nevertheless, "heightened scrutiny" is the rule in the Ninth Circuit, so that's what the court went with.

And the law got struck down -- but not before the court emphasized that same-sex couples are just like everyone else:

They represent different walks of life that range from public employees, to military veterans, to retail managers, to marketers, to health care workers. They spend their free time engaged in activities that thousands of Montana families enjoy. These couples recreate in the beautiful outdoors that Montana offers. They cheer for their favorite teams at local sporting events. They practice their faiths freely as guaranteed by our Constitution.

So give them a break, Montana.

And, finally, a word about the will of the people, which doesn't extend to discriminating. "[T]he United States Constitution exists to protect disfavored minorities from the will of the majority. Equal protection of the laws will not be achieved through 'indiscriminate imposition of inequalities.'"

Though the order granting the injunction takes effect immediately, it's unknown at this time whether the order will be stayed by the Ninth Circuit or anyone higher on the food chain.

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