The ACLU of Montana may have found a way to force states like Texas that have outlawed same-sex marriage to provide rights to gay and lesbian couples.

Although a decision has not been reached in the Prop 8 trial in California, the defense’s inability to produce any evidence or credible witnesses in that case may have emboldened the ACLU to sue on behalf of seven Montana couples.

The couples in the Montana suit aren’t pursuing the right to marry. They simply want the state to provide their families with the same protections opposite-sex couples enjoy.

The lawsuit claims Montana violates its own state constitutional guarantees of rights like privacy, equal protection and due process. The suit seeks equal rights through domestic partnerships.

By this suit, Plaintiffs do not seek the opportunity to marry nor do they seek the designation of “marriage” for their relationships. … Plaintiffs simply seek the same opportunity to obtain the statutory protections and obligations that are offered by the State to different-sex couples and their families through the legal status of marriage.

One of the plaintiffs describes her experience of being denied access to her former partner’s remains and her employer denying bereavement leave.

On their eighth anniversary, Christmas Day in 1996, Mary’s former partner was killed in a tragic accident on Lone Peak, involving an avalanche control explosive. Although Mary and her former partner had, like Stacey and Mary have, taken legally available steps to try to protect their relationship, Mary found herself powerless in a number of essential ways following her former partner’s death.

Grief-stricken after the accident, Mary was denied access to her former partner’s remains, as the coroner explained that she had no legal relationship to her partner. Big Sky Ski Resort refused to give Mary bereavement leave. Because Mary’s former partner did not leave a will and the state law that protects spouses in the event of intestacy could not apply, the family of Mary’s former partner was able to take almost all of the partner’s possessions, including half of the balance of a mutual fund account to which the couple had jointly contributed. The family also received the partner’s Worker’s Compensation Death benefits — money that by law goes to spouses, but not to the domestic partners of committed, intimate, same-sex couples. In addition, the family, unlike Mary, was able to seek damages against the ski resort through a wrongful death suit, a legal recourse that was not available to Mary even though she had been in a committed, intimate relationship with her partner for eight years.

The Texas law goes even farther than the Montana anti-gay law. The Texas amendment prohibits anything “similar to or identical marriage.” But doesn’t that actually make all marriage illegal in Texas?