By ACLU of Montana LGBT Organizer Liz Welch on FairIsFairMontana.org

Fair is Fair Montana is proud of the newest member of our Faces of Fairness:  Retired Montana Supreme Court Justice Jim C Nelson.  Although he is new to our Faces of Fairness, Justice Nelson has a long standing history with his decisions for fairness, equality and human dignity as it pertains to Montana’s LGBT community.

In Gryczan v. Montana (1997), Justice Nelson wrote the court’s opinion striking down a law that criminalized gay sex, six years before the  United States Supreme Court ruled similarly in Lawrence v. Texas. This decision paved the way for the Montana Legislature to repeal the Deviant Sexual Conduct law this past session.

In February 2002, the ACLU, on behalf of two same-sex partners and PRIDE, brought suit against the Montana University System, the Montana Board of Regents and the State of Montana for failure to allow access to health insurance for same-sex partners of  university system employees. The district dismissed the suit, holding that marital status was a proper basis on which to award health insurance benefits. The Montana Supreme Court reversed the district court in 2004, however, and held that excluding same-sex couples from health insurance was a violation of equal protection principles because unmarried opposite sex couples could file affidavits in order to obtain coverage while same-sex couples could not. In a concurring opinion, Judge James C. Nelson wrote:

"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 gay and lesbians. At least our society has not come to the position that homosexuals are not even to be considered as persons.”

In April 2009, ACLU of Montana’s Legal Director, Betsy Griffing presented oral arguments in front of the Supreme Court for Kulstad v. Maniaci. The case, regarding child custody between two same-sex partners, affirmed that Michelle Kulstad met all the criteria set out under Montana law to be a de facto parent. She provided for the day-to-day physical and emotional needs of the children by providing food, shelter, clothing, care, education and discipline; Barbara Maniaci allowed and intended for the parent-child relationship to develop; and it was in the children’s best interests to continue the parent-child relationship with Kulstad.

The Supreme Court issued a 6-1 ruling in favor of Kulstad’s retaining custody. Justice Nelson gained attention from the media and civil rights groups for his concurring opinion that stated:

"Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry. And, whether rationalized on the basis of majoritarian morality, partisan ideology, or religious tenets, homophobic discrimination is still bigotry. It cannot be justified; it cannot be legalized; it cannot be constitutionalized… Lesbian and gay Montanans must not be forced to fight to marry, to raise their children, and to live with the same dignity that is accorded heterosexuals. That lesbian and gay people still must fight for their fundamental rights…speaks, in unfortunate clarity, of a prevalent societal cancer grounded in bigotry and hate."
Justice Nelson again stepped to the forefront of LGBT rights with his dissent to the court’s 2012 decision on Donaldson and Guggenheim v. Montana, an ongoing case where six committed same sex couples are seeking the protections afforded to opposite sex couples through domestic partnerships. Although the majority decision did leave the path open for committed same-sex couples to continue the lawsuit by addressing specific statutes that discriminate against lesbians and gays in committed relationships, Justice Nelson wrote a scathing 109-page dissent from the majority. He wrote that same-sex couples should be given full protection now, saying the case,
“concerns the right of committed intimate same-sex couples to receive the same civil protections which the State makes available to committed intimate different-sex couples. Plaintiffs assert, and rightly so, that their government may not single out unpopular groups for disfavored treatment, as the State of Montana has done here… I have never disagreed more strongly with the Court as I do in this case. With due respect, I believe today’s decision… wrongly deprives an abused minority their civil rights.”
Justice Nelson retired from the Montana Supreme Court at the end of 2012, but still continues to be an avid supporter of LGBTQ rights in Montana. His Faces of Fairness statement of support is a tribute to his work from the bench.
“We the People”—Montana’s Constitution begins with these three words of inclusion and our shared commitment to equality of life, opportunity, and the blessings of liberty for this and future generations. But, this Constitutional promise will not be fulfilled until the cancer of sexual orientation discrimination is excised from our Constitution itself, and from our laws, from our administrative regulations, and from our governmental institutions and programs. Indeed, until there is an end to such state-sponsored bigotry, Lesbian, Gay, Bisexual, and Transgender Montanans will not be one with “We the People.” And, their guarantee of our Constitution’s promise of Inviolable Human Dignity, Individual Privacy, and Equal Protection of the Laws will remain but sanctimonious rhetoric and hollow assurances. “We the People” can do better. We must do better. We will.
With a heartfelt appreciation for his support, we look forward to working with Justice Nelson on various projects in the future.