Gianforte’s legal analysis may be flawed, but his family bona fides are even worse

May 18, 2023 4:17 am

I don’t know if Gov. Greg Gianforte has read the Montana Constitution. I will assume he has.

I don’t know if Gov. Gianforte has read the U.S. Constitution. I will assume he has.

At various points in his political career, he’s sworn an oath to uphold, defend and protect both of them. Implicit in the oath is that he will uphold them regardless of his own personal beliefs.

However, I do know that Gov. Gianforte read the heart-breaking story by Mara Silvers in which the governor chose political ideology over his own family, because the office issued a statement about it.

That’s why the governor’s actions on Tuesday afternoon seemed hypocritical, if not downright disingenuous.

As he signed bills that dealt with abortion – taking a public valedictory lap for trying to make into law what the state Supreme Court has repeatedly denied as unconstitutional – he crowed about protecting minors, and the importance of family, especially about the necessity of parental support for pregnant children.

“Whatever state constitutional rights may or may not exist, they must always yield to individual constitutional rights established under the federal constitution,” he wrote. “Parental rights supersede whatever abortion rights exist in this state.”

I appreciate the governor’s consistency. At least he’s wrong about both of those things.

First, there are no established parental rights in the federal constitution. And, it’s odd that Gianforte would say such a thing because it’s far-right conservatives like himself that are pushing for a federal amendment to the Constitution enshrining parental rights precisely because the right he believes is there is not.

It’s also perplexing that Gianforte would claim that either the Constitution or the Supreme Court have affirmed parental rights, a deliberate twisting of history, because the justice most responsible for articulating the absence of parental rights was none other than former U.S. Supreme Court Justice Antonin Scalia, a god in the pantheon of modern conservatives, and the precursor to this iteration of the far-right court.

“For example, my right to raise my children the way I want,” Scalia said. “To teach them what I want them taught, not what Big Brother says. That is not there.”

Meanwhile, out here in Montana, it’s even more profound than Gianforte’s attempt to whitewash history as well as law. Article II, Section 15 of Montana’s Constitution says:

“The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.”

That section, according to legal scholars, is unique among state constitutions because it not only affords minors equal footing but also says that those rights can only be enhanced, not undercut, as this already unconstitutional raft of legislation attempts.

Good lord, how many more ways must the state’s Supreme Court have to strike down unconstitutional abortion laws? Better question: How come Montana taxpayers have to keep funding such legal nonsense that costs millions and wastes the court’s time?

I’d suggest the court try something so simple that even the lawmakers can understand abortion case law: “See previous decisions on this subject.”

Not only are there no parental rights in the constitutions, but the only right that is spelled out is the protection or enhancement of minors’ rights.

Speaking of parenting, Gianforte designed a made-for-media moment at the bill signing for these abortion laws, which are the legislative equivalent of aging leftovers, by telling fellow Republicans that this latest batch of laws were pro-family bills that stop “an abortion specialist (from being) substituted for the parent.”

He then added that medical professionals are “no substitute for a parent.”

For a man who talks so much of parental support and the primacy of family – a rationale and conversation that he’s volunteered – he appears to have a peculiar way of demonstrating it.

As the Legislature was contemplating a regressive, possibly catastrophic, bill that would narrowly and unscientifically define sex as well as jeopardize federal funding, he cheered on the lawmakers.

But Gianforte’s son, David, spoke out about the harmful legislation, publicly urging his father to stop the pernicious bill, even going to the extraordinary length to schedule a formal appointment with his dad in the Capitol to lobby him not to sign the law that would hurt the LGBTQ+ community, of which he is a part.

Granted, no parents always do what their children say, but consider that the legislation that was before him would harm his own son in ways that were repeatedly articulated throughout this legislative session.

Let’s get this right: Gianforte publicly admonishes the lawmakers to pass laws that are, by most legal estimates, unconstitutional (read: illegal) because there is “no substitute” for a parent’s support, and yet he refuses to support his own son’s reasonable plea.

In fact, Gianforte didn’t let the sex definitions bill lapse into law. He didn’t just sign the law. Instead, he vetoed it, sending it back to the Legislature to make the definitions even stricter, thereby making life even more awful for his son and the community of which he is a part.

I have my doubts about Gianforte’s reading of the federal and state constitutions. I think he’s dead wrong on parental rights and abortion.

But I don’t doubt that he’s pro-family.

Just not his.

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.