Gov. Greg Gianforte claps before signing five abortion laws on May 3, 2023. (Photo by Nicole Girten/Daily Montanan)
For a moment, let’s set aside the irony that the supermajority of Republicans in the Montana Legislature just had a bill struck down as unconstitutional because it couldn’t define “sex.”
Imagine that: The same party that gawked from behind an upper-story window at a drag show at the Capitol, and warned of boys who wanted to be girls just so they could sneak into a bathroom may not know what it’s talking about when it comes to sex.
Oh, if we hadn’t just made sex ed so complicated with so many permission slips, maybe someone from the Office of Public Instruction could loan the same filmstrip I was shown in fifth grade (yes, filmstrip … look it up).
On Tuesday, Missoula County District Court Judge Shane Vannatta ruled that because the Montana Constitution requires that titles of legislation match the description of the bills, a Senate Bill that Republicans were smugly proud of, was unconstitutional. The bill, SB 458, would have strictly changed the definition of “male” and “female” throughout state law.
But because the title was unclear or even confusing, the bill didn’t pass the most fundamental constitutional checks. It failed, regardless of how much the lawmakers wished their version of reality fit the scientific definition of biological sex.
This most recent decision will likely be the latest cause for lawmaker outrage as the Republicans gin up their bile against the judiciary, just in time for election, as Senate President Jason Ellsworth’s “do-over” committee continues it’s search for evidence to back up the opinion that somehow Montana’s legal community has either failed or been co-opted by a secret liberal plot.
Vannatta went out of his way to clarify that his job, as judge, wasn’t to suggest a better title or even one he liked. It was to ask a simple question: Does the bill tell the average Montana citizen what the legislation does?
His conclusion is no, and therefore, it must fail. That’s not Vannatta, that’s the Montana Constitution.
But a careful reading of Vannatta’s opinion points out that he was merely taking what the state constitution said, and reading the bill’s title: “An Act Generally Revising The Laws to Provide a Common Definition For the Word Sex When Defining a Human.”
The 41 passages that law then changes raise plenty of questions, as attorneys for a group of challengers point out. Really, as science continues to confirm, it’s simply not as straightforward as male or female.
Let’s face it: The lawmakers aren’t nearly that dense or ill-informed.
They’ve sat through legislative testimony from doctors, scientists and Montanans who have the education and experience to tell them that this legislative thought-experiment was not supported by science, and had the power to do tremendous harm.
Yet Republicans went ahead anyway so that Montana could be known as the first state to transform sexual bigotry into law. It’s worth noting other states have followed Montana’s lead, and so SB 458 may be able to claim it was the first-of-its-kind legislation to pass, but may also be the first to be ruled unconstitutional.
We’re coming up fast on the next legislative session in Montana, and I hope this exercise in weaponizing laws against an already targeted minority would end, but not just because it amounts to government-backed bullying.
Senate Bill 458 is just another in a very long line of bills that continue to get knocked down because they fail to reach the high bar that the Montana Constitution sets. During the past two sessions, the sheer number of taxpayer-funded lawsuits that have ended in defeat is astonishing. We stopped counting months ago, but the number of lawsuits lost because of bad bills is at least several dozen.
Blaming those losses on a conspiracy of ultraliberal judges seems more and more unlikely as they pile up.
We have been asked at the Daily Montanan repeatedly: How many lawsuits have been filed, and how much is it costing Montana taxpayers?
We have put in requests multiple times with the Montana Attorney General’s Office, but instead of answering the question: How many and how much, they choose to respond that they will not respond to “our little blog.”
The irony isn’t lost on us that we may have to consider suing the top lawyer in the state to figure out how much the state has been sued.
Then again, I can hardly believe that any of this seems shocking to the average follower of Montana politics these days.
Regardless of the numbers, though, here’s an idea: Focus on a different set of numbers. How about crafting bills and legislation that aren’t based on revenge or trying to codify backward, unscientific political polices? Instead, how about crafting legislation that is more thoughtful, more bipartisan, more deliberative and, maybe even more Constitutional?
Montana lawmakers and even Gov. Greg Gianforte have crowed about how many laws they’ve passed, but failed to talk about the likely equally record-setting number of those laws that couldn’t escape judicial scrutiny or the Montana Constitution.
Remember after the ’23 session, when Gianforte and Republicans held a little signing ceremony to congratulate each other after passing a raft of abortion bills, even though abortion is a still-legal practice in Montana (because of the Constitution)?
Now ask those same lawmakers how many of those bills are in effect?
What we have in Montana is a part-time legislature that is only doing half of its job.
Meanwhile, we’re paying those same lawmakers to convene, then paying a phalanx of attorneys to defend laws that their own attorneys in many cases had said were legally deficient.
So, half the work and likely more than double the amount to the taxpayers.
Montanans should adopt Target’s nifty slogan: Expect more. Pay less.
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