Bench Memos

Tell Us What You Really Think, Your Honor

 Earlier this week, the Montana Supreme Court made an initial determination in a case seeking a court order that the state’s failure to offer the incidents of marriage to same-sex couples was unconstitutional. The majority of the court concluded the ACLU had erred in failing to mention which laws they believed were unconstitutional. Presumably they believed an open invitation to the courts to make new laws was enough.


The majority opinion takes seven pages of a 133-page document, a concurrence brings the total to 23, but on page 23 things really begin to get interesting. There, two judges dissent. Actually they join a 110-page dissent that follows but their caveats are amusing:


  •  “I write separately to state that I would not liken the Court’s approach here to cases sanctioning slavery and racial segregation.”


  •  “Although I disagree with the Court’s analysis and resolution, I do not believe it is acting in bad faith.”


These two judges join the dissenting opinion only to paragraph 179. The material after that is a fulmination against the state’s marriage amendment, which was expressly not challenged in this case.

Why the caveats? Here are some of the more colorful passages in the dissent:#more#


  • “It appears that a majority of voters in these states [Maine, Maryland, Minnesota and Washington] have seen through the scare tactics and propaganda which ‘family values’ organizations and certain religious groups have used to persuade the electorate that allowing same-sex marriage will harm children, hurt businesses and the economy, intrude on religious  freedoms, and undermine the institution of marriage itself.”


  •  “I am thoroughly disheartened that today’s decision takes civil rights in this State backward to a time when court decisions supported and facilitated other equally pernicious forms of government-sanctioned discrimination, including slavery and racial segregation; women being viewed as little more than men’s dependents, unable to vote or own property; the Chinese being deemed an “inferior” race; the compulsory sterilization of the “feebleminded”; and the criminalization of private sexual intimacy between two consenting adults. No other minority group has been treated in this fashion in this State in modern times. This, truly, is a shameful, black day for civil rights in Montana.”


  • “Yet, while gay, lesbian, and bisexual citizens may have lost this battle, the war is not over. If we have learned anything as an evolving species, it is that no government, no religion, no institution, and no political party can long oppress the inviolable dignity and spirit of human beings in their fight for fairness in the courts, access to justice, and equal protection of the laws.”


  • “Yet, the State relies on the Marriage Amendment as support for its position, and the State’s argument before this Court is bolstered by an outpouring of attacks on the same-sex couples by no less than 128 Montana protestant churches and the Montana Catholic Bishops, all appearing through the Montana Catholic Conference as amicus curiae, along with other “family values” organizations, also appearing as amici curiae.”


  • “Emblematic of the religiously grounded discrimination defended by the State and its amici is the blatant mendacity underlying the Marriage Amendment initiative — a fourberie reminiscent of some of the worst propaganda campaigns perpetrated in modern times.”


  •  “The entire underpinning of the Marriage Amendment is based on attacking and demeaning homosexuals and homosexuality.”


  •  “Indeed, the Marriage Amendment is undisputedly grounded in religious doctrine.


  • That much is apparent not only from the federal district court’s findings, but particularly from the fulminations of numerous religious organizations in the present case, led by the Montana Catholic Conference, against the prospect that gay, lesbian, and bisexual Montanans might enjoy some measure of legal protection for their relationships.”


  •  “It is disturbing that the same sort of propaganda was used to demonize various disliked groups in pre-World War II Germany.”


  • “As a former member of the Catholic Church, I find it somewhat incongruous that while the Montana Catholic Conference leads the charge here against the same-sex couples, the Church is an institution that is itself burdened with a history of marginalizing women and facilitating the sexual abuse of children.”


  • “Indeed, with every advancement in science, religion loses ground. The more humans learn and understand about the laws that actually control the universe, the less is their need to rely on gods, miracles, and myths to explain that which they do not understand.”


I’m not making this up and these are only some of the more colorful passages. There’s plenty more ad hominem and amateur theology on display throughout the opinion.

Just for perspective, note once more that this is a dissent from a decision saying the ACLU must specify which laws it is challenging as unconstitutionally depriving same-sex couples of the incidents of marriage.

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