¶1 The trial in this matter was held July 21, 1998, in Great Falls, Montana, Petitioner, Una (VanHorn) Killion (claimant), was present and represented by Mr. Turner C. Graybill. Respondent, State Compensation Insurance Fund (State Fund), was represented by Mr. Thomas E. Martello.

¶2 Following trial, the parties were permitted to submit legal briefs. The final brief was submitted on October 15, 1998, at which time the case was deemed submitted for decision.

¶3 Exhibits: Exhibits 1 through 15, 17 through 32 and 35 were admitted without objection. Exhibit 16 was admitted over the objection of Mr. Martello. Exhibits 33 and 34 were refused.

¶4 Witnesses: Claimant, Villes Emmel, and Tom Fritch were sworn and testified.

¶5 Issues Presented: As set forth by the parties in the Pretrial Order, the issues presented for decision are as follows:

¶6 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, and exhibits, the Court makes the following:

FINDINGS OF FACT

¶7 Claimant and Donald VanHorn (Mr. VanHorn) were married on June 18, 1973. They remained married until Mr. VanHorn's death on November 2, 1989.

¶8 On November 2, 1989, Mr. VanHorn died from asphyxiation during the course and scope of his employment with VanHorn Trucking, Incorporated. At the time of Mr. VanHorn's death, VanHorn Trucking was insured by the State Fund.

¶9 On November 10, 1989, the claimant filed a Beneficiaries' Claim for Compensation (Ex. 4). The State Fund accepted her claim and commenced paying benefits. (Uncontested Fact 4.)

¶10 The State Fund paid claimant biweekly death benefits retroactively to November 3, 1989, through October 7, 1994. (Uncontested Fact 5.)

¶11 Claimant remarried on October 8, 1994. Upon learning of the remarriage, the State Fund terminated benefits pursuant to section 39-71-721, MCA. (Uncontested Facts 6-7.)

¶12 The total amount of benefits paid claimant was $65,727.56. (Uncontested Fact 5.)

¶13 Claimant's death benefits were terminated pursuant to section 39-71-721, MCA (1989), which provides that death benefits to a surviving spouse terminate upon payment of 500 weeks of benefits or upon remarriage, whichever occurs first. Claimant does not contend that she was entitled to further benefits under the statute; however, she challenges the constitutionality of the statute's provision for termination of benefits upon remarriage, arguing that the provision violates her constitutional rights to free exercise of her religion, her right to privacy, and her right to be free from discrimination based on her marital status.

¶14 Claimant bases her constitutional challenges on the following facts:

• Between 1992 and 1994, she received four questionnaires from the State Fund inquiring about her marital status. (Exs. 9, 27, 28, and 29.) Claimant feels that these questionnaires invaded her privacy regarding her personal and religious choice to remarry.

• Claimant and her new husband, Donald Killion (Donald), are practicing Baptists. According to claimant, her Baptist religion precludes her from living with Donald without the benefit of marriage. In light of her love for Donald, she chose marriage even though her marriage meant she would be ineligible for continued death benefits. She believes the statute forced her to choose between giving up her death benefits or "living in sin," and that the statute therefore discriminates against her on account of her religious beliefs and her marital status.

¶15 The Court does not question the sincerity of claimant's religious beliefs. It accepts her contention that her religious beliefs preclude her from cohabiting with Donald outside of marriage.

CONCLUSIONS OF LAW

I. Governing Law

¶16 The 1989 version of the Workers' Compensation Act applies in this case as it is the law which was in effect at the time of Mr. VanHorn's death. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d, 380, 382 (1986).

II. Burden of Proof

¶17 Claimant has the burden of proving that she is entitled to workers' compensation benefits by a preponderance of the probative, credible evidence. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).

III. Section 39-71-721, MCA (1989)

¶18 Section 39-71-721, MCA (1989), governs death benefits payable on account of Mr. VanHorn's death. Subsection (5) provides:

The section provides for termination of death benefits upon a widow's or widower's remarriage. Thus, the State Fund's termination of claimant's benefits upon her marriage to Donald was proper.

IV. Section 49-2-308, MCA

¶19 Claimant argues that a general, statutory prohibition against discrimination based on marital status precludes the termination of her benefits. Essentially, she argues that the prohibition supercedes and nullifies the provision for termination of benefits upon remarriage.

¶20 The prohibition against marital discrimination is found in the Montana Human Rights Act, Title 49, ch. 2, MCA. As cited by claimant, it provides, in relevant part:

¶21 Section 49-2-308, MCA, concerns federal and state benefits and services. While it may be argued that the State Fund is a quasi-state agency, the State Fund is funded by premiums paid by businesses. It operates in the same manner as a private insurer. State funds and services are not involved and the section is inapplicable.

¶22 Moreover, section 39-71-721, MCA, is specific and unequivocal regarding termination of benefits upon remarriage. As the more specific statute, it is controlling. Gibson v. State Compensation Mut. Ins. Fund, 255 Mont. 393, 396, 842 P.2d 338, 340 (1992) ("[W]hen a general statute and a specific statute are inconsistent, the specific statute governs, so that a specific legislative directive will control over an inconsistent general provision.").

V. Constitutional Challenge

¶23 Claimant, however, asserts that the provision for termination of death benefits upon remarriage is unconstitutional. She argues that the provision violates her constitutional rights to (1) free exercise of her religion, (2) equal protection, and (3) privacy. To prevail, the claimant must prove beyond a reasonable doubt that the challenged statute is unconstitutional. Heisler v. Hines Motor Co., 282 Mont. 270, 279, 937 P.2d 45, 50 (1997).

A. Free Exercise of Religion

¶24 The United States Constitution guarantees individuals the right to freely exercise their religions. The guarantee is initially found in the First Amendment to the United States Constitution, which provides in relevant part: Congress shall "make no law . . . prohibiting the free exercise thereof . . . ." The Free Exercise Clause is made applicable to the states through the Fourteenth Amendment to the United States Constitution. Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378, 384 (1990).

¶25 The Montana Constitution contains its own Free Exercise Clause. Article II, Section 5 provides, "The state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." In applying the Montana provision, the Montana Supreme Court has applied and followed decisions of the United States Supreme Court regarding the Free Exercise Clause of the United States Constitution. E.g., Miller v. Catholic Diocese of Great Falls, 224 Mont. 113, 116-17, 728 P.2d 794, 696 (1986); Rasmussen v. Bennett, 228 Mont. 106, 111-12, 741 P.2d 755, 658-59 (1987); St. John's Lutheran Church v. State Compensation Ins. Fund, 252 Mont. 516, 524-25, 830 P.2d 1271, 1276-77 (1992).

¶26 Claimant contends that termination of her death benefits upon remarriage violates the Free Exercise clauses of both constitutions. She argues that it punishes her for remarrying because, absent her religious belief, she could have cohabited with Donald without the benefit of marriage.

¶27 The Court has accepted claimant's testimony that her religious convictions precluded her from cohabiting with Donald and continuing to collect death benefits. The acceptance of that testimony, however, does not decide the case. While the Free Exercise clauses preclude laws which regulate religious beliefs or which interfere with the dissemination of religious ideas, Gillette v. United States, 401 U.S. at 462, 91 S. Ct. at 843 (1971); or which target religious practices, Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217 (1993), they do not condemn every law which incidentally touches or affects religious practice or belief, see, e.g., United States v. Lee, 455 U.S. 252, Hernandez v. Commissioner of Internal Revenue 490 U.S. 680. 109 S. Ct. 2136; Gillette. In Hernandez the Supreme Court upheld the disallowance of a tax deduction for members of the Church of Scientology with regard to payments they made to the church for spiritual training courses. The Supreme Court upheld the disallowance despite allegations that the denial impeded the taxpayers' free exercise of their religion, noting the government's interest "in maintaining a sound tax system, 'free of' myriad exceptions flowing from a wide variety of religious beliefs." 490 U.S. at 699-700 (quoting from United States v. Lee, 455 U.S. at 260.) In Gillette the Court rejected a challenge of a military conscription law which did not recognize selective conscientious objection [religious objection to a particular war rather than all wars].

¶28 On the other hand, the fact that a law is religiously neutral and only incidentally impacts religious practice does not mean that the law automatically passes muster under the Free Exercise Clause. "[E]ven as to neutral prohibitory or regulatory laws having secular aims, the Free Exercise Clause may condemn certain applications clashing with the imperatives of religion and conscience, when the burden on First Amendment values is not justifiable in terms of the Government's valid aims." Gillette, 401 U.S. at 462. Religiously neutral laws which "unduly burden" religious practices or beliefs are barred. Wisconsin v. Yoder, 406 U.S. 205, 220, 92 S. Ct. 1526, 1536(1972). A religiously neutral statute which indirectly affects religious practice is subject to a balancing test. Id. at 214. The test is whether the State's secular interests, as reflected in the statute, are "of sufficient magnitude to override" the affected party's interests in the free exercise of her religion. Id. Where a law is religiously neutral, the State's interest need not be compelling: "A law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. at 531, 113 S. Ct. at 2226.

¶29 In applying the balancing test, Yoder is instructive. The issue in Yoder was a Wisconsin compulsory education law requiring children to attend school until age 16. The Wisconsin law criminalized parents' failure to send their children to school. The Yoders, and other respondents, were members of the Amish religion and had children. The Amish parents, in accordance with their religious beliefs, did not oppose school attendance through eighth grade. However, they alleged that compulsory attendance after eighth grade was contrary to their religious beliefs and could cause assimilation of their children into non-Amish society, thereby affecting the continued survival of their religion. The Supreme Court agreed that the evidence supported their contention and struck down the law as it applied to the Amish. The Court characterized the application of the law as punitive and severe:

406 U.S. at 218, 92 S. Ct. at 1534. In assessing Wisconsin's interest in application of the law to the Amish, the Court noted that "the requirement for compulsory education beyond the eighth grade is a relatively recent development in our history." 406 U.S. at 226, 92 S. Ct. at 1538. The Court was unpersuaded that, in light of the nature of the Amish community, a failure of Amish children to obtain the additional one or two years of education required by the law would prevent them from "making their way in the world." 406 U.S. at 224, 92 S. Ct. at 1537.

¶30 Claimant implicitly assumes that non-religious widows and widowers will cohabit without marrying in order to preserve their entitlement to death benefits. Lacking such assumption, there is no penalty for her practicing her religion since the termination provision applies equally to persons remarrying for non-religious reasons.

¶31 There is good reason to question her assumption. She has not offered evidence that the provision deters remarriage by widows and widowers who feel less religiously committed than she. Moreover, marriage is a civil, as well as a religious institution. So far as the Court is aware, atheism does not prohibit marriage; religious affiliation, on the other hand, does not always prevent couples from cohabiting without marriage. There are non-religious reasons for marriage, including love for and commitment to one another.

¶32 The statute at issue in the present case is religiously neutral. It does not distinguish between claimants who are religiously motivated to remarry and those who marry on account of non-religious reasons. It does not require nor prohibit remarriage. Termination of benefits is not conditioned upon religious belief or practice, only upon the fact of remarriage.

¶33 The Court must therefore apply the balancing test laid out in Yoder and subsequent cases, weighing the interest of the State in the regulation against the impact it has on the claimant's practice of religion.

¶34 In considering the impact of the law on claimant's practice of her religion, the Court notes that she offered no proof that her religion requires her to remarry. While she provided persuasive evidence that her religion precluded her from cohabiting with Mr. Killion without the benefit of marriage, there was no evidence presented that her religion required her to remarry. Consistent with her religion, she could have chosen to neither cohabit with nor marry Donald. It was her affair of the heart, not the law or her religion, that created her dilemma.

¶35 The effect of section 39-71-721(5), MCA, on claimant's free exercise of her religion is more indirect and removed than in the cases in which the Supreme Court has struck down religiously neutral laws. In Yoder, for example, the conflict between the law and religious practice was direct and unavoidable: The law required the Amish parents to send their children to school in direct violation with their religious tenets or face criminal prosecution. In Hobbie v. Unemployment Commission, 480 U.S. 136, 107 St. Ct. 1046 (1987), the claimant's only choice was to work on her Sabbath, in direct violation of her religious beliefs, or be fired without recourse to unemployment benefits. See also Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829, 109 S. Ct. 1514 (1989).

¶36 Not only is the conflict between law and religion more remote in this case, but the State's interest is more substantial.

¶37 Marriage is a civil, as well as a religious, institution. Civilly, the State of Montana encourages⁽¹⁾ and regulates marriage. The laws of the State impose burdens and rights on husband and wife. They are obligated by law to support each other. § 40-2-102, MCA. Laws governing the obligation of one spouse to support the other are more than abstract statements of policy. Section 40-2-103, MCA, for example, provides:

Upon dissolution of marriage, a spouse may be required to pay maintenance to the other. § 40-4-203, MCA. Upon death of a spouse, the surviving spouse has a right to a portion of the estate even if not provided for in a will. § 72-2-221, MCA.

The Court is unaware of any Montana law which creates a legal obligation for support as between unmarried but cohabiting persons, or which gives them any right to inheritance.

¶39 Upon remarriage a new set of legal obligations, concurrent with the obligations severed by the death of the previous spouse, arise as between the widow and her new spouse. In view of those new obligations for support, the rationale for death benefits ceases.

¶40 Section 39-71-721(5), MCA, was not promulgated to prohibit religion and does not preclude claimant from practicing her religion. The provision simply reflects the fact that Montana laws create legal obligations between husband and wife. It attempts to provide replacement income for the loss of that support upon death of the spouse. The impact on claimant's religious practices is more indirect than in cases where laws have been held to violate the Free Exercise Clause and the State has demonstrated a substantial, non-religious reason for its statute. Claimant's Free Exercise right was not violated by the statute.

B. Equal Protection Claim

¶41 Claimant also asserts that section 39-71-721(5), MCA, creates an arbitrary distinction between spouses who remarry and those who do not, thereby violating her right to equal protection of the laws.

¶42 Both the United States and Montana constitutions guarantee individuals the right to equal protection of the laws. The guarantee is found in the Fourteenth Amendment to the United States Constitution, which provides in relevant part:

Montana's Equal Protection Clause is found at Article II, section 4 of the Montana Constitution, which provides in relevant part:

In addition to proscribing laws denying equal protection, it specifically prohibits laws which discriminate against persons on account of their "religious ideas."

¶43 Insofar as the Montana clause specifically proscribes laws discriminating against religious ideas, section 39-71-721(5), MCA, does not violate the proscription. The previous analysis of the law under Free Exercise principles is sufficient answer to any such contention.

¶44 Equal protection analysis is essentially the same under both the Montana and United States constitutions. "The equal protection provisions of the federal and state constitutions are similar and provide generally equivalent but independent protections." In re. CH, 210 Mont. 184, 198, 683 P.2d 931, 938 (1984). As a general matter, "[t]he principal purpose of the Equal Protection Clause is to ensure that citizens are not subject to arbitrary and discriminatory state action." Zempel v. Uninsured Employers' Fund, 282 Mont. 424, 428, 938 P.2d 658, 661 (1997). It does not preclude different treatment of different groups or classes of people so long as all persons within a group or class are treated the same:

Nordlinger v. Hahn, 505 U.S. 1, 15 (1992).

¶45 The first step of equal protection analysis "is to identify the classes involved and determine whether the classes are similarly situated." In re. CH, 210 Mont. at 198, 683 P.2d at 938. Here, the distinction identified by claimant is between spouses who remarry and those who do not. Benefits for the former cease upon remarriage. Benefits for the latter continue until the surviving spouse receives the maximum amount allowed by the law.

¶46 The second step in the analysis is to determine the test to be applied to the classification. The classification involved here -- marital status -- is not a suspect class. The classification is subject to the same scrutiny as other workers' compensation laws, that being a rational basis test. See Eastman v. Atlantic Richfield Co., 237 Mont. 332, 338, 777 P.2d 862, 865 (1989). The rational basis test requires only that the discriminatory classification bear a rational relationship to a legitimate governmental purpose. Heisler at 279, 937 P.2d at 50 (citing Stratemeyer v. Lincoln County, 259 Mont. 147, 151, 855 P.2d 506, 509 (1993)). The Montana Supreme Court has described the rational basis inquiry as follows:

Eisenstadt, 438 U.S. at 447, 92 S. Ct. at 1035.

Montana Stockgrowers Ass'n v. State Dept. of Revenue, 238 Mont. 113, 117-18, 777 P.2d 285, 288 (1989).

¶47 In determining the purpose of the provision requiring termination of a widow's or widower's benefits upon remarriage, the Court is not limited to the legislative record. Kadrmus v. Dickenson Public Schools, 487 U.S. 450, 463 (1979). Similarly, in examining the relationship between legislation and its purpose, the Court is not limited to justifications reflected in legislative history. Legislatures are not required to engage in the sort of fact-finding and analysis required of courts. Federal Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 314 (1993). Thus, the Court must consider "every conceivable basis" which might support the statute. Id. at 315. In Federal Communications Comm. v. Beach, the Supreme Court articulated the reasons for the broad judicial analysis of the challenged statute:

Id. at 315.

¶48 The prior discussion of the claimant's Free Exercise challenge sufficiently answers her equal protection challenge. Death benefits for surviving spouses are intended to replace, at least in part, the loss of financial support provided by the deceased spouse. The benefits replace, in part, the deceased spouse's legal obligation for support. Remarriage establishes a new legal relationship with the same obligation between the surviving spouse and the new spouse as existed between the surviving spouse and the deceased spouse, thus the reason for the benefits ceases. The purpose of the law is legitimate; the cut-off of benefits upon remarriage is reasonably related to the purpose.

¶49 Califano v. Jobst, 434 U.S. 47, 98 S. Ct. 95 (1977), confirms my analysis. That case involved social security disability benefits. The recipient in that case was totally disabled from birth and his benefits were derivative from one of his parents, i.e., his benefits were based on his dependency upon a parent eligible for benefits under the Social Security Act. He married a woman not entitled to social security disability benefits, although she was also disabled. Upon marriage, his benefits were terminated. The Court rejected equal protection claim based upon his marriage:

434 U.S. at 53-54 (emphasis added). Jobst refutes claimant's contention that the distinction between surviving spouses who do not remarry and those who do is either arbitrary or irrational.

C. Privacy Claim

¶50 Claimant's final argument is that the State Fund's actions represent an unconstitutional violation of her right to privacy. She notes that in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967), the Supreme Court explicitly extended the right of privacy to the freedom of choice in marriage. She contends that the privacy right recognized in Loving shields her from having to reveal her decision to remarry to the State Fund.

¶51 Loving concerned the freedom of choice to marry. It did not establish any right to keep the fact of marriage, or non-marriage, secret. The case does not support claimant's argument.

¶52 Montana has its own constitutional guarantee of privacy. Article 2, section 10 of the Montana Constitution provides: "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." The compelling state interest test applies only if there is a right of privacy, thus the initial question which must be answered under the section is whether there is a right to privacy.

¶53 Montana has adopted the following two-tier test for determining whether a person has a constitutionally protected privacy interest: