I pulled up to the pumps and let reflex kick in: open the door, pop the gas cap, pull out my wallet, scan the prices, and see how much the endless war will cost me this time. Then I caught his motion. Twenty feet down the line some burly dude was striding at me, lifting his hands, saying “You want help with that…“ more as a directive than a question.
No, I did not. What did he want? I was already squeezing the nozzle. I had been driving for hours, since the last fill, so clocking his odd approach took a moment. That’s right. I was in Oregon, now, not Montana.
For reasons usually framed around job-preservation, attendants are still there to pump your gas, in Oregon. Until 2023, it was mostly illegal there to fill your own gas tank. Looking at this guy, I flashed back to sitting at an Arco station in Portland, waiting for the attendant to get around to taking my card and filling my tank. He was in no hurry. I could have left. I stayed.
You can drive nine hours across Montana, from St. Regis to Glendive, and not find anyone to pump your gas. Rugged individualism is baked so hard into our state culture that it would be embarrassing to ask, without a physical disability.
It’s a regional difference. Oregon raises prices to preserve jobs. Montana expects you to pump it yourself. So it is.
My husband and I were “gay married” in 2000, in a beautiful ceremony, joined by our whole families, plus a hundred guests, even though state and federal law denied us equal rights, at the time, and refused to recognize our relationship.
Eight years later, in 2008, Oregon legalized “domestic partnership” for same-sex couples. So, we bought a domesticity permit from the county clerk. Among other things, it allowed us to file joint state tax returns.
For five more years, until 2013, the IRS refused to recognize our joint state returns for federal tax purposes1. Which meant we had to pay to have a joint federal tax return prepared, just so we could calculate our joint state tax return, based on the federal numbers. Then, we had to pay extra to have two additional, individual, federal tax returns prepared, to actually file with the IRS. Because we are gay.
Which meant, for five years, from 2008 to 2013, we knew, to the penny, exactly how much extra it cost us every year to be gay, by comparing our individual and joint federal tax returns, since the law said we needed both.
Married people get a federal tax subsidy. So, the “anti-gay marriage tax” cost us thousands of dollars every year. Money we could have spent on a nice vacation, if we were straight. And yes, we upgraded to a “real” marriage license, after the Obergefell v. Hodges decision in 2015.
Had we lived in Montana during those five years, this would not have been an issue. We would not have been filing joint state returns. We would not have been legally domesticated, much less married. Montana still bans same-sex marriage, to this day, though the ban is enjoined by Obergefell, at least for now.
It’s a regional difference. Oregon was ahead of the curve in respecting the equal dignity, and supporting the legal stability, of same-sex relationships. Oregon gave us the rights straight people take for granted. Montana does not. Or, did not.
No one knows what will happen if Obergefell is overturned, as MAGA prays2.
Liberalism, by philosophical definition3, means leaving room for differences. Or, as we might put it in Montana, “What happens on your ranch is none of my business.” America was founded on this principle, as an enlightened response to the European wars of religion, which raged for well over a century following the Protestant Reformation4. Wars Pete Hegseth wants to bring back5, but I digress.
U.S. federal law is an umbrella, which explicitly exists to enable legal and cultural diversity among the states and territories. Respect for diversity is baked right into the structure of our government. Anyone who took high school Civics learned this, though a whole lot fewer recall or seem to respect it.
It is legal and culturally normal for Oregon and Montana to have different laws and cultures. But, issues show up due to modern mobility. We can now travel further, faster, and more frequently than the Founders ever imagined.
The extra taxes we had to pay were to the federal government, not state. Our marriage license was granted in Oregon. Years later, we moved back home to Montana. So, should federal legal questions be decided on where a license was granted, or where its holders reside? Law professors love this type of question.
If I claim to respect diversity, then I should be okay with legal differences between states, up to the point where the U.S. Constitution declares otherwise.
But, would I still “respect diversity” if it cost me? Montana still has a gay-marriage ban in place. Overrule Obergefell and it pops back immediately.
Obergefell was decided on the same principles which struck down bans on interracial marriage, in Loving v. Virginia. Overruling Obergefell would mean severely curtailing, or eliminating, the explicit right to equal protection of the laws, across all U.S. states and territories, guaranteed by the 14th Amendment.
What would happen after that is an open question. The very recent Trump v. Slaughter decision enables presidents to run federal agencies like a puppet-master. So, nobody knows if the IRS would continue to respect state marriage licenses, as it decided in 2013. If there were no longer a 14th Amendment right to equal protection—a right originally granted to put a national end to slavery—then any state could presumably do what it wants. Would former Confederate states try to enslave people again?
So, since our marriage license was granted by Oregon, not Montana, put an end Obergefell, and my hubby and I would be back to paying an “anti-gay marriage tax,” as a cost of continuing to live in the state where we were born.
A libertarian Montanan—and there are many—might say, “well, if you don’t like Montana’s laws, move back to Oregon.”
Of course, this “anti-gay marriage tax” scenario feels safe for me to play with in my head. Obergefell is recent law, established by folks still on the court. Just 11 years ago, SCOTUS decided Americans have a fundamental right to the basket of legal privileges granted by a marriage license. Further, they recognized this right is equally available to all American couples, including same-sex couples, based on the explicitly-written guarantee of equal protection in the 14th Amendment.
Even Trump’s subservient SCOTUS might hesitate to scratch out the explicit wording of the 14th Amendment.
Side note: Obergefell only grants a right to a legal “courthouse” marriage. Churches are private, tax-exempt associations, with a vast and growing array of legal protections. No church can be forced to perform a marriage ceremony. Anyone claiming otherwise is lying, and likely trying to get the state to nationalize and subsidize their personal religious views.
On the other hand, in 1973, Roe v. Wade was decided based on a “liminal” right to privacy. Unlike the 14th Amendment right to equal protection, no explicit right to privacy appears in the text of the U.S. Constitution. Instead, Justice Blackmun found that a right to privacy was necessarily implied by other, more explicit constitutional provisions, and so must be recognized. The Court agreed 7-2.
Then, in 2022, SCOTUS radically reversed itself. In Dobbs v. Jackson Women’s Health Organization, it rejected “liminal,” or implied, constitutional rights. It ruled that the only constitutional rights American get are those explicitly written into the literal text. This ruling overruled Roe, terminating the federal right to privacy women had been relying upon for 28 years.
The Dobbs decision kicked the question of whether Americans have any privacy rights, including a right to decide what happens inside the privacy of our own bodies, back to the individual states.
The Montana Constitution explicitly guarantees a right to privacy (Art. II, Sec. 10.) A woman’s right to choose what happens inside her body during pregnancy has been protected here since 19996. Montana also added an additional, explicit guarantee of a woman’s right to choose abortion, two years ago, the same year we re-elected Trump by 58% to Harris’ 38%. Go figure. Diversity can be weird.
A libertarian Montanan—and, again, there are many—talking to a woman from Idaho who wants a pre-viability abortion, might say “well, if you don’t like your choices in Boise, drive over to Missoula.”
It may surprise some that abortion is protected in Wyoming, too. Again, go figure. Diversity is surprising, and privacy rights cover a lot of common ground.
Watching America suffer through our ongoing cold civil war, I have to wonder, would greater integrity to the notion of respecting diversity reduce conflict?
Utah is effectively a Mormon theocracy. 9 out of 10 seats in the Utah Legislature are held by members of the Church of Jesus Christ of Latter-Day Saints7. Yet there is a thriving LGBTQ community in Salt Lake City, and cannabis can be purchased and consumed in Utah (with a prescription.)
Since Dobbs, abortion remains available, with varying levels of legal protection, in 31 U.S. states. Abortion pills (mifepristone) are available anywhere postal mail can be safely received. Numerous organizations assist women with travel funds to obtain abortions8.
And, still, there are many states which do not respect medical privacy yet, whether for abortion, gender affirmation, or vaccination. Some might see the potential here for a large, diverse coalition, framed around medical privacy.
Let me repeat: [T]here are many states which do not respect medical privacy, yet, whether for abortion, gender affirmation, or vaccination. Some might see the potential here for a large, diverse coalition, framed around medical privacy.
I do not know if I would pay extra taxes to continue living in Montana as a gay-married man. I have not had to face this, yet. I also do not know how far I would travel to get a major medical procedure, with lifelong implications.
If I wanted to own an assault rifle, would I leave Minnesota9?
If I wanted to blow backyard fireworks 200 feet into the air, and risk blazing my neighbor’s roof as part of the entertainment, would I move in next door to my mother-in-law, in East Helena, Montana?
A lot of American political tension can be viewed as consumer culture taken to an extreme. We don’t just want things, we want them cheap, easy, local, and now.
Theories of universal rights are as lovely as they are impotent. The practical reality is that no “right” exists unless it is enforceable and defined.
This is why the U.S. Constitution is so very important, for so far as it goes. It is amendable, if we have the collective will to define more nationwide rights.
Until then, we can move to, or make, the state we choose.
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IR-2013-72, Aug. 29, 2013. Treasury and IRS Announce That All Legal Same-Sex Marriages Will Be Recognized For Federal Tax Purposes; Ruling Provides Certainty, Benefits and Protections Under Federal Tax Law for Same-Sex Married Couples.
Prepping For The Supreme Court To Overturn Obergefell. Conservatives are coming for same-sex marriage. These states want to be ready.
https://abovethelaw.com/2024/10/prepping-for-the-supreme-court-to-overturn-obergefell/
America 250: Exploring the Many Stories of the United States: Religious Diversity in Colonial America
https://guides.library.georgetown.edu/America-250/religiousdiversity
The Surprising Religious Diversity of America’s 13 Colonies. It wasn’t just Protestants seeking a place to freely practice their faiths.
https://www.history.com/articles/religion-13-colonies-america
Deus Vult: Pete Hegseth’s Christian Nationalist Crusade to Remake the U.S. Military. January 19, 2026
https://globalextremism.org/post/pete-hegseths-christian-nationalist-crusade/
Armstrong v. State (Mont. 1999)
https://law.justia.com/cases/montana/supreme-court/1999/d94d06f5-3a93-4aa5-babb-fb5f9dcc3098.html
Latter-day Saints are overrepresented in Utah’s Legislature, holding 9 of every 10 seats. Salt Lake Tribune.
https://www.sltrib.com/news/politics/2021/01/14/latter-day-saints-are/
The Brigid Alliance. We get people to abortion care, whatever it takes.
Assault Weapon Bans by State 2026: Updated List and Definitions
https://gunlawsbystate.com/assault-weapon-bans-by-state-2026-updated-list-and-definitions