Judge Hands Major Defeat To Transgender Lawmaker Suing Red State Over ‘Unconstitutional’ Censure
'Disciplinary authority'
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Democratic state Rep. Zooey Zephyr was booted out of the Montana legislature for the remainder of the 2023 season last week after he directed hateful anti-Christian rhetoric at his Republican colleagues then appeared to encourage a riot that broke out in his name.
Zephyr, born Zachary Raasch, filed a lawsuit Monday contesting his ousting, which the state attorney general's office chalked up to "performance litigation."
The Montana Democrat's litigious performance was not well received.
District Court Judge Mike Menahan rejected Zephyr's suit, indicating it was not within his powers to overrule lawmakers who voted to prevent Zephyr from taking to the House floor or participating in debates, reported the Associated Press.
"Plaintiffs’ requested relief would require this Court to interfere with legislative authority in a manner that exceeds this Court’s authority," wrote Judge Menahan.
What's the background?
Zephyr lashed out at his Republican colleagues during a debate over amendments to Senate Bill 99, the "Youth Health Protection Act" — already passed by the state House (65-33) and Senate (31-17) at the time.
The bill prohibits doctors from performing genital mutilation and elective mastectomies on minors as well as from prescribing puberty blockers to children.
Zephyr said, "The only thing I will say is if you vote yes on this bill and yes on these amendments, I hope the next time there’s an invocation when you bow your heads in prayer, you see the blood on your hands."
While Republican Gov. Greg Gianforte would go on to bloodlessly sign the bill into law on April 28, Republicans would not allow the leftist lawmaker's remarks to go unchallenged; particularly not after a trans extremist had, just weeks before, shot up a Christian school.
In response to Zephyr's hateful ant-Christian comments, the House voted on April 20 in favor of censure. Montana House Speaker Matt Regier indicated that Zephyr would need to apologize before once again being recognized on the floor.
Zephyr stressed that he had no intention of apologizing.
Following his censure, Zephyr's supporters stormed the Montana Capitol on April 24.During the anti-democratic flare-up, Zephyr "remained standing in the middle of the floor encouraging an insurrection after all members were told to move to the sides and clear the House gallery to remain in a safe location," said the Montana Freedom Caucus in a statement after the incident.
The House determined in a April 25 vote that Zephyr had "violated the rules, collective rights, safety, dignity, integrity, or decorum of the House of Representatives, and if so, whether to impose disciplinary consequences for those actions."
Zephyr was accordingly barred from the anteroom and gallery for the remainder of the 2023 season, but still permitted to vote remotely.
"Currently all Representatives in the Montana House are free to participate in debate while following House rules. The choice to not follow House rules is one that Rep. Zephyr has made," Regier said in a statement. "The only person silencing Rep. Zephyr is Rep. Zephyr. The Montana House will not be bullied. All 100 Representatives will be treated the same.
The lawsuit
On Monday, Zephyr announced that a lawsuit was filed by the American Civil Liberties Union of Montana against the Montana House leadership in an effort to apply a restraining order and permanent injunction, thereby preventing House leadership from "enforcing, threatening to enforce, or otherwise applying the Censure."
"I'm suing," he said in a Twitter post. "The recent actions violate my 1st amendment rights, as well as the rights of my 11,000 constituents to representation."
The suit claimed Zephyr's censure was "unconstitutional" and "retaliatory" and constituted not just an attempt to silence "what she said, but who she is."
The complaint cited examples where the language Zephyr was censured for was previously employed and not punished; however, these instances did not occur in the Montana state House, but rather in Texas and Alabama.
A spokesman for Montana Attorney General Austin Knudsen told Fox News Digital, "This is performance litigation – political activism masquerading as a lawsuit. ... The ACLU is trying to use the courts to interfere with the legislature as it carries out its constitutional duties on behalf of Montanans. Any relief granted by the court would be a gross violation of the separation of powers."
Exile upheld
Politico reported that lawyers working under Knudsen warned that any intervention by the courts on Zephyr's behalf would be a flagrant violation of the separation of powers, stressing that the state House retains "exclusive constitutional authority" to chastise and censure its members.
Judge Menahan happened to agree in his five-page ruling, underscoring the importance of preserving the U.S. Constitution's separation of powers between judicial, executive, and legislative branches, reported USA Today.
"Today’s decision is a win for the rule of law and the separation of powers enshrined in our Constitution," said Knudsen.
Zephyr didn't take the news well, telling the Associated Press the judge's decision was "entirely wrong."
"It’s a really sad day for the country when the majority party can silence representation from the minority party whenever they take issue," said Zephyr.
There is little time left in the 2023 legislative session, so an appeal would not amount to much, especially with Zephyr's punishment lapsing at session's end. Furthermore, to make a fuss in the next session two years from now, Zephyr will first have to seek re-election in 2024, as his term ends on Jan. 6, 2025.
While democratically elected representatives voted to censure Zephyr, he maintains that the result was an "attack on democracy," telling Time as much in an interview this week:
Rep. Zooey Zephyr: My Censure Was an Attack on Democracy youtu.be
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