Alex Blaze

Montana's GOP Tries to End All Hope for LGBT People

Filed By Alex Blaze | February 24, 2011 3:00 PM | comments

Filed in: Politics
Tags: lesbian, LGBT, Missoula, Montana, romer v. evans, supreme court, transgender

This happened while I was gone for the weekend, but this item on the antidiscrimination front is a first for me in the four years I've been blogging here at Bilerico so I should make sure it gets on this site.

missoula.jpgThe Montana house passed a bill to overturn a local LGBT antidiscrimination ordinance in Missoula. While there are plenty of states that don't have such protections, I can only come up with one example of a state that tried to ban local governments from trying to fill in the gap in state law: Colorado.

Romer v. Evans was the first LGBT win at the Supreme Court back 1996, after Amendment 2 was passed by popular vote in 1992. Amendment 2 was passed in reaction to several local governments (Aspen, Boulder, and Denver) passing sexual orientation antidiscrimination ordinances and banned any municipality in the state from protecting "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."

The Supreme Court overturned Amendment 2 on a rational basis test (lower scrutiny, so they didn't have to see sexual orientation as a suspect class), specifically citing the fact that LGB people lost equal protection because they couldn't ask local governments to pass these laws in the future:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.'" Sweatt v. Painter, 339 U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws is a pledge of the protection of equal laws.'" Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)).

Colorado's law specifically mentioned sexual orientation, while Montana's says that local ordinances can't protect beyond the classes already mentioned in state law. Not that that matters much - the entire discussion around this bill has been about LGBT people. Gays were mentioned in testimony:

"There are those of us who would not to rent to gay and lesbian people for religious reasons," said Himes, a Hamilton pastor.

Pressed later by Rep. Ellie Hill, D-Missoula, what those religious reasons are, Himes said: "It is God himself who says that homosexuality is an abomination, and he has various punishments for that, too."

And trans people too:

Dallas Erickson of Montana Citizens for Decency through Law, said, "This law in Missoula means that a person with a penis can now go into the showers where the people with vaginas have gone."

Erickson said he knows Ravalli County residents who won't take their children into Missoula businesses "because they don't know if they're going to confronted in the restroom with a different gender."

The court in Romer was also shocked that they had never seen anything so discriminatory before:

Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law [ ROMER v. EVANS, ___ U.S. ___ (1996) , 11] is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928).

And that was before Lawrence v. Texas.

This still has to get through the senate, which is controlled by Republicans in that state, and has to be signed by the governor, who's a Democrat. Whether it becomes law or not, it's just shocking that they'd try an anti-gay move like that even the Supreme Court was willing to reject back in the 90's.

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Off topic, but needs mention:

Sen Jim Banks' crappy website defaults to

What goofball at the GOP is designing this, uh, trash.

Montana, Indiana, and the other states that are enacting blanket discrimination laws against gays are starting to look alot like Uganda.

Remember who gave the idea to Uganda. It was American missionaries. Wonder why it looks so similar?

"Erickson said he knows Ravalli County residents who won't take their children into Missoula businesses 'because they don't know if they're going to confronted in the restroom with a different gender'."

Yes, the state that gave us the Unibomber. There's more people in the city limits of Marietta, GA then in all of Montana. Like Missoula may have a half dozen trans people at best. Also, I've only heard a few trans people who would even admit they live in MT. MT has long been on my "Never-to-drive-through" list for a long time.

I hope the Supreme Court kicks their asses.

Oh, things like this make me wish I had gone to law school, just as my mama wanted me to ...

Actually, Alex, I think we have the same restriction here in Indiana ... or we did at one time. I know that in the mid-1970's the Indiana legislature responded to the Bloomington HRO by declaring that if local HRO's extend categories beyond those recognized by state law, then those extensions are merely advisory and cannot have the force of law.

Now, I know that many LGBT activists here in Indy and other major Indiana cities will be miffed to hear it suggested that HRO protections re sexual orientation and gender identity are merely advisory -- but even in the recent "CupcakeGate" bruhaha, we learned that HRO protections are only as good as the intent of the presiding boards (the city Human Rights Commission, then the City Council) to enforce them.

Anyone well versed in Indiana discrimination law is invited to weigh in on this -- and I'd be delighted to find out definitively that things have changed, or that I'm flat-out wrong to begin with.

P.S. Since the Montana bill does not name LGBT people specifically, and simply says that local counties and municipalities cannot add protected categories that apply only to their own jurisdictions, I expect that the Romer v. Evans ruling does not apply. (And again, that is same situation we have here in Indiana.)

The Montana Taliban has overstepped this time, I think. People are starting to take notice.
It also needs to be said that Bozeman also has a comprehensive non-discrimination ordinance in place.
Keep an eye on this- we need all the help we can get.

hey off topic. What are you talking about? I get a 404 file not found.

Kentucky tried to pass a GOP sponsored bill that would strip a city or county's right to to make civil rights law and reserve that power only at the state level.

Thankfully it died a painful and very public death.

I think it'll die the same death the Colorado law did. That's already established supreme court law now.

AS I think most of us understand, the right wing (from KKK and Tea Baggers to formerly "mainstream" GOPers) ultimately seeks to rewrite the Constitution, With a long-term majority (i.e, a "one-party" dictatorship) they actually COULD rewrite the Constitution. Be very wary and GET INVOLVED! Remember, Hitler was constitutionally elected and exercised legal procedures when he suspended the German Constitution back in 1933.

I read the DES MOINES REGISTER online daily, mostly to see obits. But the past year has been appalling in terms of the amount of hateful rhetoric that preceded a vote to remove 3 Iowa SC Justices who were part of the unanimous decision upholding SSM.

That movement succeeded and now the others are targeted. A number of Tea Party candidates were elected to the House and have spent much of the current legislative session introducing anti-gay bills such as a proposed constitutional amendment to define "marriage" as between one man and one woman. Prohibition of civil unions seems to be on the TP agenda too. The latest of the weekly outrages is a bill to halt SS marriages in Iowa until an amendment can be passed, something that would deny SS couples marriages for at least 2 years.

Reader comments online are overwhelmingly negative. Even self-described Republican Conservatives are reacting to the time wasted when the state's economy, employment, education issues and more are ignored.

Huge amounts of money have been squandered in Iowa to promote and to counter the TP theocrat agenda.

I observed in a comment that the Tea Party and the bedbug infestations emerged at about the same time. I hope that the TP problem can be resolved in the next elections but fear that bedbugs might be easier to eradicate. They certainly do less damage substantively as well as in promoting bad images. So far, the Iowa loons aren't quite so vociferous as the Montanans, and the Iowa Senate is a bulwark against most of the crap bills. But these are parlous times everywhere.