Montana Republicans Stop Bill That Would Formally Legalize Gay Marriage In State

The bill, authored by transgender representative Zooey Zephyr, died in committee on a party-line 8-12 vote.

Representative Zooey Zephyr // MPAN

It’s not about discrimination, but “men and women are designed differently.” It’s not prejudiced to acknowledge “biological and social reality.” It’s not just a “social construct.” It’s about protecting the children.

These were the words of Derek Oestreicher, chief legal counsel for the Montana Family Foundation, a conservative advocacy group, who was the sole opponent during the public comment period to speak against a Montana Bill that would fortify same-sex marriage rights within the state.

Given that state courts ruled in favor of same-sex marriage rights in 2014, which was reaffirmed by SCOTUS in 2015, and because thousands upon thousands of gay Montanans have been already wed, one might assume same-sex marriage was already formally legalized. But this is not so. The state constitution still technically classifies legal marriage as a privilege between “one man and one woman” via a 2004 amendment. Earlier this year, state legislators tried—and failed—to enact a law to supersede Obergefell, reinstating the same-sex marriage ban. It joined at least eight other states in attempting to do so.

Representative Zooey Zephyr, a Democrat, introduced legislation to counter that. She described the 2004 provision as “vestigial.” At the same time, if Obergefell goes the way of Roe, the amendment could leave same sex couples hanging in the balance. Same-sex relationships were a felony offense in Montana until 1997, and although it seems the state wasn’t actively prosecuting people for it, the law became a cudgel that enabled and empowered discrimination.

“One of the important aspects of the anti-gay marriage conversation that happened in the state capitol shows the people who are bringing these bills are targeting every letter of the LGBTQ community,” Zephyr said in an interview with Erin in the Morning.

If Zephyr’s bill passed in both the state House and Senate, the matter would be put onto the ballot as a referendum. But the bill died in committee along party lines... The Judiciary Committee assigned for an initial review of the bill was stacked with a majority of Republicans.

Zephyr and her wife, Erin Reed—who, full disclosure, founded and edits Erin In The Morning, if you didn’t already know—testified in the committee hearing. They cited rhetoric from anti-gay lawmakers of an earlier time, soundbites from 2004 that sound a whole lot like a page out of Project 2025.

“‘A vast untested social experiment’ is what they called our love,” Zephyr said in her speech to the committee.

Other Montanans begged conservative representatives to approve the bill. The now-retired Diane Sands, who was the first “out” lesbian in the state legislature, made an appearance to champion the bill’s passage. The ACLU and Planned Parenthood also lent their support. One Montanan, testifying via Zoom, pleaded: “People in same-sex marriages are just like you.”

One woman talked about the sudden death of her wife about a decade ago. “I was still in shock the next day, when I learned that the funeral home was refusing to provide their services without a marriage certificate,” she recalled. She said requesting legal proof of marriage from the recently-widowed is not standard mortuary practice.

In the midst of her grief, the woman says she had left town; she didn’t know where the records might be offhand. The family ended up using another funeral home, although the initial funeral directors still charged her $500 for their “services,” she said. “The lesson here is that even the appearance of government-sanctioned discrimination has real-world effects.”