HELENA — The Montana attorney general is asking the 9th Circuit Court of Appeals to put on hold his appeal of a ruling that the state’s ban on same-sex marriage is unconstitutional.
Republican Attorney General Tim Fox wants to wait because the U.S. Supreme Court plans to take up the issue this term, spokesman John Barnes said Friday.
“We’re just putting it on hold,” Barnes said, adding that he expected his office to file the motion Friday afternoon.
It doesn’t make sense to spend time and money on the case when the federal court’s decision will affect Montana, Barnes said. Attorneys in his office most likely will file a brief with other states in the U.S. Supreme Court case, defending the right of states to define marriage as they choose, he said.
Voters in the state in 2004 approved a constitutional amendment banning gay marriage. Such bans have been falling around the country since the Supreme Court in 2013 struck down part of the federal Defense of Marriage Act.
In May, four same-sex couples filed a lawsuit challenging Montana’s voter-enacted ban on gay marriage. A federal judge tossed out the ban in November, and counties began issuing marriage licenses to same-sex couples within hours.
Montana ACLU legal director Jim Taylor said this week that the plaintiffs do not object to delaying the proceedings until after the U.S. Supreme Court rules. “We are confident the Supreme Court will side with the Courts of Appeals that have stricken down bans on same-sex marriage,” Taylor said in an email to the Associated Press.
Montana lawmakers this week voted 12-9 along party lines to table a bill that would take the marriage ban out of Montana’s legal code.
Taylor said the Legislature’s failure to act is reminiscent of prior failures to repeal unconstitutional legislation affecting same-sex couples. He cited the 16 years it took lawmakers to repeal a criminal law banning sexual relations between consenting same-sex couples after a state Supreme Court struck it down.
“For too long, we have been on the wrong side of history concerning the rights of our LGBT citizens, and as a people we can do better,” he said.