"When they say it isn't about sex, it's about sex."

38 “We the people”--Montana’s Constitution begins with these three words. These words precede “the people[‘s]” statement of shared commitment to improving their quality of life and equality of opportunity and to securing the blessings of liberty for present and future generations. In these three words, there is no mention of race, there is no mention of gender, nor is there any reference to religious affiliation, to ethnic background, to marital status or to sexual orientation. Simply and eloquently, the first words of Montana’s Constitution are words of inclusion.

39 Yet, for many Montanans these words carry no such promise. These Montanans live and work and raise their families knowing that, truly, they are not part of “the people.” These Montanans are gays and lesbians. And, for that--for being who they are--they are ridiculed, ostracized, despised, demonized and condemned. Their pleas for respect and for equal justice are answered by their government, by their institutions--and by “We the people”--with intolerance and bigotry, albeit impeccably adorned in sanctimonious rhetoric, sterile logic and hollow assurances. . . .

79 Laws and policies which single out, degrade and demonize persons based on their gender or sexual orientation--i.e., for simply being who they are--casts a shadow on the individual dignity of such persons and devalues those persons basic humanity and the intrinsic worth that all people possess. See Walker, 81-82. Such treatment repudiates the “essential equality” of all people before the law and the “moral basis for democratic government.” Jackson, at 23. Gays and lesbians have the moral right and moral responsibility to confront the most fundamental questions about the meaning and value of their own lives, to answer to their own consciences and convictions, see Armstrong, 72, and, as autonomous human beings, the inherent right to form relationships with whomever they choose. These rights are no more nor less than heterosexuals enjoy. Indeed, they are precisely the same rights that those representing and supporting the Respondents rightly enjoy and demand. Unequal treatment based on sexual orientation is an affront to the inviolable right of human dignity. . . .

81 Again it must be noted at the outset, that the equal protection clause states that “No person” shall be denied the equal protection of the laws. The language is clear and unambiguous. “No person” means simply that--there is no language in this clause excepting out of this guarantee gays and lesbians. At least our society has not come to the position that homosexuals are not even to be considered as persons.

82 As has already been pointed out, neither federal jurisprudence nor this Court’s case law recognizes gender or sexual orientation as an arbitrary classification or “suspect class” for equal protection purposes. This view, however popular, is inherently illogical when one acknowledges that the entire focus of laws directed at gays and lesbians is sex. Majoritarian morality and prevailing political ideology are offended by the fact that people of the same sex have sexual relations with each other. This offense translates into laws and policies that explicitly or implicitly demonize homosexuals and make them a disfavored class. Heterosexuals, on the other hand, are a favored class because their sexual relations are with persons of the opposite sex. Homosexuals are a disfavored class because their sexual relations are with persons of the same sex. Regardless, however, the defining criteria of either class is plainly and simply sex--or, to be more specific, with which sex one is having sex. To paraphrase an old adage, “When they say it isn’t about sex, it’s about sex.”

83 Laws based on gender orientation are palpably sex-based and are, therefore, suspect classifications under conventional equal protection analysis. . . .

87 In the case at bar, heterosexual couples are entitled to more and better employment benefits than are homosexual couples. This unequal treatment is based on gender and sexual orientation and is, therefore, sex-based--it is a classification which is inherently arbitrary and suspect, because it violates the inviolable human dignity of the persons so classified and those persons’ fundamental right to equal protection of the laws. . . .

91 The Delegates’ intention that our Constitution’s Declaration of Rights not be interpreted as limiting civil rights, but, rather, as the enumeration of basic guarantees that a free and sovereign society--“We the people”--should enjoy is best exemplified in the Committee’s proposal of Article II, Section 34 to the Convention delegates and in the subsequent adoption of this provision. Article II, Section 34 states:

Unenumerated rights. The enumeration in this constitution of certain rights shall not be construed to deny, impair, or disparage others retained by the people.

92 In proposing the adoption of this section, the Committee did two things. First, it recognized that the rights enumerated in Montana’s Constitution were not exclusive--i.e., that there are unenumerated rights or “rights beyond those specifically listed” which are retained by the people. Proposal, p. 645. Second, and important to my discussion here, the Committee considered this section to be “a crucial part of any effort to revitalize the state government’s approach to civil liberties questions. [And that this section] may be the source of innovative judicial activity in the civil liberties field.” Proposal, p. 645. . . .

99 The Respondents’ arguments are framed in terms of who can be married and who cannot--heterosexuals can and homosexuals cannot. Amici supporting the Respondents focus their arguments on family values, majoritarian concepts of morality, religious doctrine and preserving the sanctity of marriage both as a civil and as a sectarian institution. These arguments are red herrings. They miss the mark and ignore the core issue here--whether gays and lesbians have the right to individual human dignity, equal protection of the laws and freedom from discrimination under Article II, Section 4 of the Montana Constitution with respect to obtaining the same economic benefits of employment that heterosexuals receive for the same work.

100 Certainly, secular organizations and religions have the right to define for their own members their beliefs, doctrines, moral tenets, rules and rituals. Individuals have the right to hold whatever personal opinions they choose. That is not to say, however, that these institutions, groups and persons may impose their philosophies and values on minorities and on others who ascribe to a different view and whose conduct and life styles cause no harm. We stated in Gryczan:

James Madison decried the potential for a tyranny of the majority, pointing out that it was as important in our system of government to guard the minority in our society against injustice by the majority, as it was to guard society from the oppression of its rulers. The Federalist, No. 51, at 351 (James Madison) (Jacob E. Cooke ed., 1961). . . .

. . . [Despite governmental laws and policies and perceived societal notions of what is acceptable in a moral sense] there are certain rights so fundamental that they will not be denied to a minority no matter how despised by society.

Gryczan, 283 Mont. at 455, 942 P.2d at 125-26. As individual privacy was such a right in Gryczan, the fundamental rights to human dignity, to equal protection of the laws and to freedom from invidious discrimination, are in the case at bar.

101 The University in particular and employers in general are perfectly capable of providing gays and lesbians and gay and lesbian couples with the same economic benefits of employment that heterosexuals enjoy. And that is all this case is about--providing similarly situated employees the same economic benefits from employment. This case is not about gay marriage or gay unions, as the Court’s Opinion clearly acknowledges. . . .

104 Furthermore, the only basis for the argument that granting gay and lesbian couples equal employment benefits will destroy the institution of marriage is that the employer has made an arbitrary decision to use marriage as the defining criteria for granting these benefits. Were the defining criteria different--as it could easily be--the whole issue of marriage, religion and morality would cease to exist. Paying homosexual workers the same as their heterosexual counterparts has not destroyed any important institutions in or the moral fabric of our society, and there is no evidentiary basis for concluding that extending health insurance benefits to gay and lesbian couples will have that effect either. Indeed, that has not occurred in those states and with those many employers and institutions that have extended such benefits already.

105 Additionally, there are three reasons why the preserving-the-institution-of-marriage argument fails. First, this is not a gay marriage case. This case is about providing equal financial benefits to similarly situated employees of the same employer.

106 Second, the premise that extending economic employment benefits to gay and lesbian couples will somehow harm marriage is itself without merit. There is no actual evidence in the record here to support that conclusion. Indeed, arguably, heterosexuals have done more to denigrate the institution of marriage than gay and lesbian couples ever have or likely ever will. In the years since 1998, the divorce rate in Montana has averaged nearly 40%. Moreover, this rate does not take into account any number of heterosexuals “living in sin,” without the benefit of any marriage, nor does it take into account married heterosexuals who are engaged in extra-marital affairs. Our society lionizes professional athletes, entertainers, and high-profile politicians despite (although one would sometimes think, because of) marital infidelity and divorces. One need simply turn on the television to understand that the “Ozzie and Harriet” and “Leave it to Beaver” genre of television shows are historical artifacts which have no popularity with the American viewing public. I submit that those championing the preservation-of-marriage argument accord a good deal more to the sanctity of the institution than do a substantial percentage of Montanans and other Americans as evidenced by their actual conduct.

107 Third, and importantly for our discussion here, the preservation-of-marriage argument is, transparently, little more than a convenient vehicle through which to condemn and to discriminate against gays and lesbians because of their lifestyles and gender orientations. See Clifford, at 334-35. To be sure, homosexuality offends many people’s sense of morality and the teachings of many religions. However, we live in a pluralistic society, and, as we said in Gryczan:

With respect to regulation of morals, the police power should properly be exercised to protect each individual’s right to be free from interference in defining and pursuing his own morality but not to enforce a majority morality on persons whose conduct does not harm others. . . . Indeed, what is considered to be “moral” changes with the times and is dependent upon societal background. Spiritual leadership, not the government, has the responsibility for striving to improve the morality of individuals. Campbell [v. Sundquist (Tenn.Ct.App. 1996)], 926 S.W.2d [250,] 265-66 (quoting Commonwealth v. Bonadio (1980), 490 Pa. 91, 415 A.2d 47, 50).

. . . Our Constitution does not protect morality; it does, however, guarantee to all persons, whether in the majority or in a minority, those certain basic freedoms and rights which are set forth in the Declaration of Rights. . . .

Gryczan, 283 Mont. at 454, 942 P.2d at 125. . Again, as the right of individual privacy was one of those basic freedoms and rights in Gryczan, the right of human dignity, equal protection of the laws and freedom from discrimination are, likewise, basic freedoms and rights which must be protected in the case at bar. A policy of classifying persons for its own sake cannot be justified. Romer v. Evans (1996), 517 U.S. 620, 635, 116 S.Ct. 1620, 1629, 134 L.Ed.2d 855. There is no compelling state interest for the Respondent’s policy at issue here. . . .

110 Indeed, in this approach we give real meaning to the plain language and to the spirit of Article II, Section 4 and we realize the Constitutional Convention’s charge under Article II, Section 34 that our decisions become a crucial part of the effort to revitalize the state government’s approach to civil liberties questions--civil liberties that “We the people” are, without exception, entitled to enjoy.

111 With this additional rationale, I concur in our Opinion.

/S/ JAMES C. NELSON