No turning back on marriage equality

Just three months ago, the Billings City Council voted down a nondiscrimination ordinance that would have expanded civil rights protections to lesbian, gay, bisexual and transgender people.

The vote came at 3 a.m., following a very long meeting. Later that day, Councilman Brent Cromley, who supported the NDO, said the setback would not halt the steady progress being made on LGBT rights.

He said it was only a matter of time before the courts found Montana’s voter-approved ban on same-sex marriage unconstitutional.

“I see us having same-sex marriages in the state,” he said, “but they may not be able to take their honeymoons here.”

That, of course, was a reference to one of the most common arguments made against NDOs—that people whose religion tells them homosexuality is a sin shouldn’t be forced by the government to bake a wedding cake for a gay couple, or to photograph a gay wedding.

As everyone knows, that day envisioned by Cromley has already arrived. U.S. District Court Judge Brian Morris of Great Falls declared on Wednesday that the state’s ban on same-sex marriage was unconstitutional, and on Thursday gay couples in Yellowstone County and across the state officially tied the knot.

Morris’ ruling was the inevitable result of the U.S. Supreme Court’s decision in early October not to review lower-court rulings that overturned bans on same-sex marriage in five states.

Some cynics suggested that conservatives on the Supreme Court thought it best to do nothing now, wait for a Republican president to be elected in 2016 and hope for the appointment of a few new conservative justices, so a clear majority could uphold such bans.

I suppose that’s possible, but I’d like to think the justices took a close look at the 14th Amendment to the Constitution, as Judge Morris did, and found no wiggle room. Here are the salient parts of that amendment:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”

The equal protection clause, which was the basis of Morris’ ruling, ends right there. It does not go on to say, “This amendment, however, does not apply to homosexual citizens, or to persons whom a majority of voters deem to be in violation of religious doctrine, as interpreted by people who purport to know exactly what God means, in every instance.”

I also found it interesting, and quite telling, that much of the opposition to the Supreme Court’s action, and then to Morris’ ruling, was based on the idea that a majority of citizens ought to be able to impose their morality on the minority, and to deprive that minority of equal protection.

Here’s what Sen. Ted Cruz, of Texas, said of the Supreme Court decision: “This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the people, to define marriage consistent with the values and mores of their citizens.”

And here’s Jeff Laszloffy, head of the Montana Family Foundation, on the Morris ruling: “I am heartbroken for the people of Montana who have had the redefinition of marriage forced on them by an out-of-control federal judiciary.”

True, Montana voters approved the ban on same-sex marriage by initiative in 2004. But Montana citizens approved another initiative, way back in 1912, called the Corrupt Practices Act, which banned corporations from spending money to influence elections in the state.

That initiative was overturned by the U.S. Supreme Court by way of its infamous ruling in Citizens United, which held that corporations are legally persons with First Amendment rights to free speech—and to unlimited spending to influence elections. The same people now decrying the usurpation of the will of the majority hailed Citizens United as a great victory.

It took a great leap of logic to declare that corporations are persons, and that ruling, we can hope, will be overturned by a future Supreme Court.

But the overturning of bans on same-sex marriage appears to be here to stay. The language of the Constitution is unambiguous, and the extension of such an important, fundamental right as the right to marry, once granted, will be all but impossible to take away.

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