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Discrimination Questions Remain Despite Gay Marriage Decision

Flickr user Archie McPhee (CC-BY-NC-2.0)

Now that a federal judge has struck down Montana’s ban on gay marriage, questions remain about how that affects businesses who object to same-sex marriage for religious or other reasons.

University of Montana Law Professor Anthony Johnstone says civil rights laws that prevent businesses from discriminating against customers don’t include protections for sexual orientation.

“It would perfectly constitutional and legal in Montana for the lead plaintiffs in this case to get married in Great Falls and go down the street and seek to have a reception in a restaurant or have their picture taken by a wedding photographer and be rejected on the basis of their sexual orientation," Johnston says.

This wouldn’t happen in Bozeman, Butte, Helena and Missoula. They all have some form of non-discrimination ordinance. Some Bozeman residents are suing the city to repeal the ordinance, and Billings voted not to pass a similar ordinance in August.

Last week, four employees in the Yellowstone County clerk's office refused to process same-sex marriage licenses because of religious and moral objections. County officials had to find other workers to process the licenses.

Johnstone says many states that legalized gay marriage are trying to decide if a private business has the constitutional right not to serve people based on sexual orientation. He predicts Montana will have to make a similar choice in the near future.

Meanwhile, Montana Attorney General Tim Fox’s appeal of the federal court order striking down the state’s gay marriage ban is due in court by February 27.

As we reported on Friday, Johnstone says the appeal’s chances are slim.

But he says the U.S. Supreme Court will eventually have to make a final judgment on  same-sex marriage. Last year, the court ruled that the federal Defense of Marriage Act, also called DOMA, was unconstitutional. The act barred same-sex couples from being referred to as spouses.

“What that federal defense of marriage act did in the court’s terms was disrespect these relationships, these families, and these children that are in these families," says Johnstone. "And that’s likely to be a consideration as this case returns to the Supreme Court.”

As more gay couples file for marriage licenses in Montana and across the country, Johnstone believes it’s less likely likely the U.S. Supreme Court will uphold the state bans.

“One of the reasons that the plaintiffs in these cases offer is that now that we’re married and entered into this relationship and we have children, it does much more harm to those families to reinstate the ban than it would to strike the ban down."


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