A National Model for Reconciling Equal Protection for Same-sex Couples With State Marriage Amendments: Alaska Civil Liberties Union Ex Rel. Carter v. Alaska

• Jurisdiction: Alaska,United States
• Publication year: 2006
• Citation: Vol. 23

§ 23 Alaska L. Rev. 117. A NATIONAL MODEL FOR RECONCILING EQUAL PROTECTION FOR SAME-SEX COUPLES WITH STATE MARRIAGE AMENDMENTS: ALASKA CIVIL LIBERTIES UNION EX REL. CARTER V. ALASKA

Alaska Law Review
Volume 23
Cited: 23 Alaska L. Rev. 117

A NATIONAL MODEL FOR RECONCILING EQUAL PROTECTION FOR SAME-SEX COUPLES WITH STATE MARRIAGE AMENDMENTS: ALASKA CIVIL LIBERTIES UNION EX REL. CARTER V. ALASKA

ERIC J. LOBSINGER ^[*]

I. INTRODUCTION

II. HISTORY OF SAME-SEX LITIGATION AND LAW IN ALASKA

III. CARTER V. ALASKA

A. The Setting of the Case

B. The Superior Court

C. The Supreme Court

IV. REFLECTIONS AND APPLICATIONS

V. CONCLUSION

FOOTNOTES

The Alaska Supreme Court chartered new territory in the controversy over the legal recognition of same-sex relationships in Alaska Civil Liberties Union ex rel. Carter v. Alaska. By striking down provisions that limit state and municipal employee benefits to the spouses of employees, the court extended the state constitution's equal protection clause to include non-discrimination of same-sex couples under the shadow of a state marriage amendment that constitutionally defines marriage as an institution exclusively limited to one man and one woman. This Comment examines the decision of the Alaska Supreme Court and, despite reservations for elements of the court's rationale, suggests that the decision may serve as a model for at least temporary reconciliation between state marriage amendments and the need for equal protection for same-sex couples in other states.

[*pg 118]

I. INTRODUCTION

Within the last decade, the legal status of gays and lesbians has moved in conflicting, if not seemingly chaotic fashion in the United States. In 2003, the Massachusetts Supreme Court ordered the State to make provisions for same-sex marriage, thereby granting same-sex couples complete equality with opposite-sex couples. ^[1] In contrast, eighteen states have amended their constitutions since the mid-1990s, including thirteen states in 2004, to explicitly limit marriage between one man and one woman. ^[2] The opposite directions in which states have moved in respect to the legal recognition of same-sex couples may reflect the perceived deep social divisiveness that exists in contemporary American culture concerning gay and lesbian rights. ^[3] Indeed, the differing state approaches can be framed as a prime example of states serving as laboratories in new social experiments ^[4] and, in this case, social experiments in the forms of families and human relationships.

While such state-by-state experiments offer a competitive means of finding effective solutions to complex legal and political problems, widely varying approaches on questions concerning fundamental rights or the essential dignity of individuals may leave some people in the nation far worse off than others in significant ways. Fortunately, judicial review exists to identify fundamental [*pg 119] rights and protect such rights from majoritarian whims. ^[5] Decisions by couples on how to manage their family, marriage, and living arrangements, in particular, are some of the most personal and fundamental issues guaranteed by the Constitution, and thus cannot be limited by states unless absolutely necessary means are used to achieve compelling interests. ^[6] Private, consensual same-sex intimacy recently reached similar heights of constitutional protection in Lawrence v. Texas. ^[7]

A disconnect, consequently, has developed between a federal constitutional recognition of sexuality-related privacy and the surge in state constitutional amendments that explicitly refuse to recognize the sanctity and legal claims of same-sex couples. On October 28, 2005, however, the Alaska Supreme Court became the first court to bridge the growing gap between legal protection and non-protection of same-sex couples. ^[8] Alaska Civil Liberties Union ex rel. Carter v. Alaska is noteworthy because Alaska has statutory and constitutional provisions that define marriage as an institution limited to one man and one woman; ^[9] yet, the supreme court held that, according to the state constitution, the domestic same-sex partners of state and municipal employees were entitled to the same employee benefits offered to spouses of state and municipal employees. ^[10] Specifically, the court held "spousal limitations to be unconstitutional as applied to public employees with same-sex domestic partners." ^[11] In making such a ruling, the court was able to extend legal recognition, or at least equal legal protection, to same-sex couples in a limited but significant way, and yet remain faithful to a jurisprudence that constitutionally denies marriage status to same-sex couples. Because of its breakthrough analysis, rationale, and conclusion, Carter may very well serve as a guide for the pur-[*pg 120] suit of rights of same-sex couples in the other seventeen states that constitutionally limit marriage to one man and one woman.

II. HISTORY OF SAME-SEX LITIGATION AND LAW IN ALASKA

The possibility of extending equal benefits to domestic partners of same-sex public employees was first raised in 1995 by a superior court when policies that limited benefits to spouses of employees were challenged. ^[12] Relying in part on Alaska's then gender-neutral marriage statute that used the word "person" rather than "man" and "woman," ^[13] the superior court held that the University of Alaska-Fairbanks could not legally limit spousal benefits to husbands and wives. ^[14] During the same time, same-sex plaintiffs Jay Brause and Gene Dugan brought suit against the Alaska Bureau of Vital Statistics in order to have their application for a marriage license approved, relying on the then gender-neutral marriage statute. ^[15]

In sharp reaction to the litigation, the state legislature drafted a new marriage statute, which still stands today. The statute in part reads:

Marriage is a civil contract entered into by one man and one woman that requires both a license and solemnization. ^[16]

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. ^[17]

A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage. ^[18]

[*pg 121]

With the new marriage statute, Brause and Dugan amended their complaint to ask for a declaration that the marriage statute was unconstitutional. ^[19] The superior court found that under the equal protection amendment of Alaska's constitution, ^[20] choosing one's life partner, regardless of whether the partnership is traditional or nontraditional, is a fundamental right. ^[21] Moreover, the court determined that the prohibition on same-sex marriage was a classification based on gender. ^[22] The superior court then ordered a trial requiring the State to show a compelling state interest in prohibiting same-sex marriage. ^[23]

Brause v. Bureau of Vital Statistics ignited a movement for amending the state constitution to explicitly define marriage as only between one man and one woman. The supreme court declined the State's petition for review, ^[24] which spurred the legislature to pass the marriage amendment less than three months after Brause. ^[25]

As soon as the marriage amendment passed through the legislature, litigation commenced to prevent the measure from being [*pg 122] placed on the ballot of a state-wide referendum. ^[26] Aware of the time table for the referendum, the supreme court granted expedited consideration to the challenge against the marriage amendment, as well as challenges to two other referendum measures. ^[27] The supreme court decided to permit the measure on the referendum, ^[28] provided that the second sentence of the marriage amendment would be deleted. ^[29] Finally, on November 3, 1998, voters were presented with the proposed amendment: "To be valid or recognized in this State, a marriage may exist only between one man and one woman." ^[30]

Voters approved the marriage amendment by a rather large margin of 68% to 32%. ^[31] By approving the marriage amendment, Alaska became the first state to adopt a marriage amendment that explicitly limits marriage to just one man and one woman. ^[32]

After approval of the amendment, the Legislature moved for the Brause case to be dismissed as moot. ^[33] The arguments by the plaintiffs in Brause evolved to challenge the prohibition against same-sex couples from receiving the same legal benefits and protections of married couples. ^[34] The superior court dismissed the case for lack of standing. ^[35] The supreme court subsequently reviewed the case and affirmed the lower court's procedural decision, ^[36] but not without also providing some interesting analysis that questioned the merits of the State's substantive arguments.

[*pg 123]

One of the plaintiffs' claims was that Alaska Statute section25.05.013(b), a provision of the new marriage statute, denied them, as a same-sex couple, "at least 115 separate rights which are afforded to people who are able to marry," such as "'the denial of health coverage, forms of insurance, equal protection in pension and retirement plans, as well as testamentary and property rights.'" ^[37] According to the majority opinion, the State defended...