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Same sex marriage (SSM) and civil unions

Same-sex marriage in Alaska

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Overview:

The State of Alaska has never authorized a marriage between persons of the same gender. The legislature passed a law in 1996 which specifically bans same-sex marriages.

Jay Brause and Gene Dugan challenged this law. They have been involved in a partnership for almost 20 years. They have petitioned the state court to declare the 1996 law unconstitutional, and to force the state to recognize their relationship. A Superior Court judge ruled that they have a right to a marriage license, unless the state can provide a compelling case why that would be against the best interest of the people of Alaska.

In 1998-NOV-3, the public voted and approved Measure 2. It was an amendment/revision to the state constitution that would outlaw same-sex marriages, and allow the legislature to pass any legislation it wishes concerning marriage. Brause and Dugan's case was dismissed in 1999-SEP.

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Timetable of Developments:

bullet1994-AUG-4: Brause and Dugan filed an application for a marriage license. With the exception of being of the same gender, they otherwise satisfied all of the requirements of the state. The Office of Vital Statistics denied their application. They filed suit in the Alaska Superior Court.

Attorney Robert Wagstaff presented arguments before Superior Court Judge Peter Michalski. The plaintiffs asked that the existing Marriage Code be declared unconstitutional because it violates two rights guaranteed by the Alaska constitution: their rights to privacy (their right to be let alone) and their rights of equal protection. Wagstaff pointed out that there are over 100 state statutes that provide rights and protections to married couples which are not available to homosexuals who live together in a permanent partnership. The Alaska Constitution forbids gender-based discrimination, yet is withholding privileges from Brause and Dugan solely because of they are both male.

bullet1995-MAR-3: Representative Normaon Rokeberg (R) introduced House Bill 227 to restrict marriage to one man and one woman. It was passed by the House on 1996-FEB-28.
bullet1996-MAR-14: Rep. Lyda Green (R) introduced Senate Bill 30 to restrict marriage to one man and one woman. It is entitled "An Act clarifying a statute relating to persons who may legally marry; relating to." It states, in part, that:

"Marriage is a civil contract entered into by one man and one woman...A marriage entered into by persons of the same sex, either under common law or under statute, that is recognized by another state or foreign jurisdiction is void in this state, and contractual rights granted by virtue of the marriage, including its termination, are unenforceable in this state...A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage." 3

It was passed by the Senate Health, Education and Social Services Committee, by the Senate, and by the House. Governor Tony Knowles (D) allowed the bill to become law.

bullet1998-FEB-3: The Senate Health, Education and Social Services Committee introduced Senate Joint Resolution 42. It proposed "an amendment to the Constitution of the State of Alaska relating to marriage." It would add a Section 15 to the Constitution, declaring that "Each marriage contract in this State may be entered into only by one man and one woman. The legislature may, by law, enact additional requirements relating to marriage." The addition is scheduled to be submitted to the voters at the next General election, 1998-NOV-3, as Measure 2.
bullet1998-FEB-27: Superior Court Judge Peter A Michalski issued his decision. It was similar to that of Circuit Court Judge Kevin Chang in a comparable case in Hawaii: that the choice of a spouse is a fundamental human right for all persons. He ordered the state to show a compelling reason why heterosexuals should be given special marriage rights while homosexuals are prohibited from marrying.

In his ruling, he commented that: "It is the duty of the court to do more than merely assume that marriage is only, and must only be, what most are familiar with. In some parts of our nation mere acceptance of the familiar would have left segregation in place. In light of Brause and Dugan's challenge to the constitutionality of the relevant statutes, this court cannot defer to the legislature or familiar notions when addressing this issue." He ruled that "marriage, i.e., the recognition of one's choice of a life partner, is a fundamental right. The state must therefore have a compelling interest that supports its decision to refuse to recognize the exercise of this fundamental right by those who choose same-sex partners rather than opposite-sex partners."

On the assertion that Brause and Dugan's right to privacy had been abridged, the Judge stated that on the surface, it might appear that the constitutional privacy clause might not apply. "...after all, they are seeking public recognition of a same-sex marriage." But he asserts that the selection of a marriage partner "is personal, intimate, and [thus is] subject to the protection of the right to privacy."

On the assertion that their equal protection had been abridged, the Alaska Constitution says in Article 1, Section 3 that "No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex or national origin." Judge Michalski's decision "finds a person's choice of life partner to be a fundamental right. The consequence of this decision is that any limitations on this right are subject to the strict scrutiny standard established by the Alaska Supreme Court."

He concluded that "The parties are directed to set necessary further hearings to determine whether a compelling state interest can be shown for the ban on same-sex marriage found in the Alaska Marriage Code."

The State appealed Judge Michalski's ruling to the Supreme Court. The legislature passed a resolution urging the court to act quickly and overturn the Superior Court ruling. There were no further developments.

bullet1998-JUL-17: Rev. Howard Bess is a Baptist pastor of the Church of the Covenant near Wasilla, AK. He and his wife are close friends of the Brause and Dugan couple. With reference to the proposed constitutional amendment, he said: "It just seems to me that for people who are sincerely religious in the Legislature, for them to come along and want to codify their religious convictions in our state constitution just seems short-sighted, in my eyes, and it needs to be nipped in the bud." He filed a lawsuit, claiming that:
bulletThe amendment would violate the equal protection clause of the U.S. constitution.
bulletIt also infringes on the separation of powers, because it instructs judges on how they can interpret the constitution.
bulletIt also would allow the legislature to criminalize all kinds of activities related to marriage, like a gay couple calling themselves married or arranging a religious union service.

Their lawyer, Robert Wagstaff,  accused the legislature of being "on a divine mission...If the constitution stops it, [then] they're out to change the constitution." They also want to change the ballot title from: "Constitution Amendment Limiting Marriage” to “Constitutional Amendment Denying Homosexuals Fundamental Rights."

bullet1988-JUL-24: Republican lawmakers sued Lt. Governor Fran Ulmer, a Democrat. One of her tasks is to describe impartially each amendment and initiative presented to the public. They claim that she distorted the meaning of the anti-gay marriage initiative when she started her summary with: "This measure would amend the Declaration of Rights section of the Alaska Constitution to limit marriage." The Republicans assert that the word "limit" is incorrect "because as of this date no nation in the world and no state in this country recognizes or has ever recognized homosexual same-sex marriage." They are asking the Superior Court to force Ulmer to use an earlier draft of her summary which begins: "This measure would add an amendment to the Alaska Constitution on marriage."
bullet1998-JUL-30: The Alaska Civil Liberties Union (AkCLU) filed a lawsuit against the state, seeking to cancel Measure 2. Executive Director Jennifer Rudinger stated that: "Our whole system of government in Alaska, as set forth in the Alaska Constitution, is based on the fundamental notion that all people are entitled to equal protection under our laws. Measure 2 so radically alters this underlying principle of equality that it amounts to a revision of the Alaska Constitution and not an amendment at all." Revisions have to be first approved by a constitutional convention; amendments can be sent directly to the voters by the legislature.
bullet1998-JUL-31: The Alaska Family Coalition was formed. Members include the former mayor of Achorage, George Sullivan. The group describes itself as a "diverse, ecumenical group of citizens united around a common cause: preserving the institution of marriage." 4
bullet1998-AUG-31: Superior Court Judge Sen Tan heard arguments to both the AkCLU and Rev. Bess challenges to Measure 2. He issued his judgment immediately after hearing the oral arguments, so that the case could be heard by the Alaska Supreme Court before the NOV-3 ballots must be printed. Attorney Wagstaff argued that Measure 2 is really a revision to the constitution, not an amendment. Revisions are beyond the authority of the legislature to place on the ballot. Judge Tan rejected this argument. He also ruled that the existing ballot description was acceptable.
bullet1998-NOV-3: The voters approved Ballot Measure 2, Joint Resolution 42: "Constitutional Amendment Limiting Marriage" by a vote of about 68% to 32%.   The ballot  contained the following description:

"This measure would amend the Declaration of Rights section of the Alaska Constitution to limit marriage. The amendment would say that to be valid, a marriage may exist only between one man and one woman. It would also say that no provision of the Alaska Constitution may be interpreted by a court to to require the state to recognize or permit marriage between individuals of the same sex."

It is the first time that an identified group has been stripped of constitutional rights in Alaska, and assigned second-class citizen status.

Measure 2 was opposed by Alaskans for Civil Rights / NO on 2, 3The League of Women Voters, the Alaska Democratic Party, the Alaska Civil Liberties Union, People for the American Way, Parents Families & Friends of Lesbians and Gays (PFLAG), and University of Alaska S.E Student Government. It was promoted by the Alaska Family Coalition.

Mary Ann Pease, spokesperson for the Alaska Family Coalition, said "We are thrilled that the people of Alaska have voted in favor of preserving the institution of marriage as existing only between one man and one woman. We see this as a positive direction for the children of Alaska and throughout the United States."

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission commented: "If we were to allow same-sex marriage to be legalized, then we have sent the message to our society and to our young people that this is a perfectly normal healthy lifestyle choice, but in fact the Bible tells us in Romans 1 it is an unnatural, sinful choice. [The Apostle] Paul says it's against nature. There's no mystery here. The homosexual and lesbian community, their agenda is clear. Their agenda is first the normalization and societal affirmation of their lifestyle and secondly the abnormalization and marginilization of those who believe homosexuality is unnatural. The homosexual community does not want tolerance; they want affirmation. That is something that someone who believes in biblical authority cannot give them...To say that the Bible, both Old and New Testaments, does not condemn homosexuality as a particularly serious sin is nonsense. It is only in the last third of the 20th century when large segments of the Christian faith apostasied from any semblance of biblical Christianity and rushed headlong into the pursuit of the latest 'trendier than thou' theologian that there has been any question about what the Christian stance should be in regard to homosexuality."

The measure has many similarities to Proposition 2 in Colorado which prohibited towns and cities from passing legislation granting equal protections to gays and lesbians. The U.S. Supreme Court declared that Proposition unconstitutional. They reasoned that governments should not be in the business of identifying groups of citizens and specifically denying them fundamental human rights. The Court may also find the Alaska amendment unconstitutional on similar grounds.

bullet1999-SEP-22: The court heard oral arguments in the case of Brause and Dugan v. State of Alaska.Judge Peter Michalski ruled that the passage of the 1998 amendment invalidated Brause and Dugan's claim for a marriage license. The case was dismissed.

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References

  1. Jim Clarke, "Alaska Men Want Court to Throw Out Same Sex Marriage Ban," Associated Press, 1997-NOV-16
  2. Brause and Dugan had a home page at:  http://uk.360.yahoo.com/
  3. "Alaskans for Civil Rights / NO on 2" have a home page at: http://members.tripod.com/  
  4. The Christian Coalition of Alaska had a web page at: http://www.alaska.net/. It appears to be defunct.
  5. "Alaska," Lambda Legal, at: http://www.lambdalegal.org/

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Copyright 2002 to 2007 by Ontario Consultants on Religious Tolerance
Latest update: 2007-SEP-10
Author: B.A. Robinson

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