I was the first attorney in Montana to successfully argue that Montana’s Partner and Family Member Assault (PFMA) statute is unconstitutional based on Equal Protection grounds. That is, the PFMA statute discriminated against heterosexuals because it punished them for doing the same act as homosexuals, who are not punished at all.
Some may criticize Montana’s Equal Protection law because they claim it will pave the way for legalizing gay marriages. However, in my case, State of Montana v. Dale James Miller, I was able to get the case dismissed on behalf of a heterosexual. After the Court dismissed the case, the State did not appeal the Court’s ruling to the Montana Supreme Court.
This implies that the State believed that the Montana Supreme Court would affirm the Court’s ruling. The result was, the Lincoln County Attorney’s Office had to take a step back on prosecuting Partner Family and Member Assault crimes. This benefited an ordinary, common Montanan.
If you have been charged with PFMA, you may have an Equal Protection defense. What will happen on the trial level will depend on which Court is presiding over your case. Many attorneys have attempted to raise this defense in counties like Flathead County and in the City of Kalispell, but those judges have not found PFMA unconstitutional on Equal Protection grounds.
But as much as they may deny this defense, the State’s action (by not appealing to the Supreme Court) shows that they strongly suspect what the Montana Supreme Court will do with the PFMA statute—namely, rule it unconstitutional. Otherwise, you know they would have appealed the Court’s ruling in hopes of getting it overturned.
