The Alaska Marriage Amendment: the People's Choice on the Last Frontier

• Citation: Vol. 16
• Publication year: 1999

§ 16 Alaska L. Rev. 213. THE ALASKA MARRIAGE AMENDMENT: THE PEOPLE'S CHOICE ON THE LAST FRONTIER

Alaska Law Review
Volume 16
Cited: 16 Alaska L. Rev. 213

THE ALASKA MARRIAGE AMENDMENT: THE PEOPLE'S CHOICE ON THE LAST FRONTIER

KEVIN G. CLARKSON, DAVID ORGON COOLIDGE, and WILLIAM C. DUNCAN ^{[*] [**] [***]}

I. INTRODUCTION

II. THE ORIGINS OF THE MARRIAGE AMENDMENT

A. Alaska's Defense of Marriage Act

B. The Trigger: Brause v. Bureau of Vital Statistics

III. THE PASSAGE OF THE MARRIAGE AMENDMENT

A. Approval by the Legislature

B. Pre-Ballot Litigation

C. Popular Debate and Ratification

D. Post-Passage Developments

IV. THE CONSTITUTIONALITY OF THE MARRIAGE AMENDMENT

A. The Alaska Constitution

B. The United States Constitution

C. The Real Question

V. CONCLUSION

FOOTNOTES

This Article examines the Marriage Amendment to the Alaska Constitution, which states: "To be valid or recognized in this State, a marriage may exist only between one man and one woman." It begins by tracing the origins of the amendment in Alaska's Defense of Marriage Act, which defines marriage as the relationship of one man and one woman, and the Brause v. Bureau of Vital Statistics case, which held that the Defense of Marriage Act was presumptively unconstitutional under the equal protection and due process clauses of the Alaska Constitution. Then, the passage of the Marriage Amendment in the Legislature and through popular ratification is narrated. Next, the constitutionality of the Marriage Amendment is analyzed with respect to [*pg 214] the Alaska and the United States Constitutions. The Article concludes that the Marriage Amendment is constitutional and a valid exercise of democratic self-government.

I. INTRODUCTION

They were the most unexpected judicial decision and state constitutional amendment of 1998: Judge Peter Michalski's decision in Brause v. Bureau of Vital Statistics ^[1] in February, followed by the passage of the Marriage Amendment by the Legislature in May and the voters in November. ^[2] While all eyes were on Hawaii ^[3] and [*pg 215] Vermont, ^[4] where the battle over same-sex "marriage" ^[5] had been raging, Alaska suddenly became close to ground zero in the national marriage debate. ^[6]

On February 27, 1998, Anchorage Superior Court Judge Peter Michalski held in Brause v. Bureau of Vital Statistics ^[7] that under the Alaska Constitution, each person has a "fundamental right" to choose his or her "life partner," whether that partner is of the same or opposite sex. ^[8] His unprecedented decision provoked an extraordinary reaction: the introduction and passage of a state constitutional amendment defining marriage as a relationship between a man and a woman. ^[9] The Marriage Amendment was challenged between its passage and the November general election, and the Alaska Supreme Court allowed a modified version to proceed to a vote. ^[10] On November 3, 1998, the Alaska Marriage Amendment passed by a vote of sixty-eight to thirty-two percent. ^[11]

[*pg 216]

The three of us are not neutral bystanders in this debate. We support the Alaska Marriage Amendment, and one of us serves as Counsel for the Legislature in defending the amendment. We share with our opponents, however, and all thoughtful observers and concerned citizens, a desire to examine its context, meaning, and implications for marriage and constitutional law.

This Article will address three questions. First, what are the origins of the Marriage Amendment? In Section II, we look at the history of Alaska's marriage law and the Brause decision. Second, what can be learned from the passage of the Marriage Amendment? In Section III, we offer a narrative of the passage of the Marriage Amendment, from initial introduction to post-passage developments, looking for clues as to its intended meaning. Third, is the Marriage Amendment constitutional? In Section IV, we consider a variety of constitutional arguments that may be made for and against the Marriage Amendment, especially in light of the United States Supreme Court's decision in Romer v. Evans, ^[12] which struck down a Colorado constitutional amendment that classified on the basis of homosexual, lesbian or bisexual orientation. We conclude that given current trends, the Marriage Amendment is likely to be held to be fully consistent with both the Alaska Constitution and the Constitution of the United States.

II. THE ORIGINS OF THE MARRIAGE AMENDMENT

The Alaska Marriage Amendment originated as a reaction to Judge Michalski's decision in Brause v. Bureau of Vital Statistics. ^[13] However, neither the Brause decision nor the Legislature's response transpired in a vacuum. In this section, we examine events preceding the Marriage Amendment, including Brause itself.

A. Alaska's Defense of Marriage Act

Before 1974, Alaska's marriage statute expressly restricted marriage to a union between one man and one woman. Alaska's marriage code specified that marriage could be entered into by "a male who is 21 years of age or older with a female who is 18 years of age or older." ^[14] In an effort to comply with a 1972 amendment [*pg 217] to article I, section 3 of the Alaska Constitution that prohibited discrimination on the basis of sex, the age of consent for marriage was changed to nineteen for both sexes in 1974. ^[15] The revised statute also replaced the words "man" and "woman" with the word "person." ^[16] Nothing in the legislative history suggests an attempt to allow persons of the same sex to marry. ^[17]

In early 1995, the Superior Court in Fairbanks heard a case challenging the University of Alaska-Fairbanks' ("UAF") policies limiting spousal benefits to the "husbands" or "wives" of its married employees. ^[18] Superior Court Judge Meg Greene set loose a firestorm when she ruled that UAF could not legally limit spousal benefits to husbands and wives. ^[19] Although not central to her decision, Judge Greene suggested that the gender-neutral marriage statute might allow for same-sex marriage. ^[20]

As a result, the Legislature became aware that the marriage statute could be misinterpreted. While courts in other jurisdictions have held that gender-neutral marriage codes do not necessitate same-sex marriage, ^[21] in light of Judge Greene's ruling, the Legislature was not willing to entrust the marriage statute to the Alaska Judiciary. In 1996, the Legislature changed the marriage statute to accomplish two goals: (1) to clearly provide that for purposes of legal recognition and status, marriage in Alaska could exist only between one man and one woman; and (2) to clearly prevent any same-sex marriage, validly performed in another State, from being recognized in Alaska. As finally amended, the Alaska marriage statute read as follows: "Marriage is a civil contract entered into between one man and one woman that requires both a license and [*pg 218] solemnization." ^[22] In addition, it provides that any same-sex marriage recognized in another jurisdiction is void in Alaska, and any contractual rights granted by such a marriage are unenforceable. ^[23]

B. The Trigger: Brause v. Bureau of Vital Statistics ^[24]

In 1995 two men, Jay Brause and Gene Dugan, relying on the then-gender-neutral marriage code, and in the wake of the Hawaii Supreme Court's decision in Baehr v. Lewin, ^[25] submitted an application for a marriage license to the Alaska Bureau of Vital Statistics, Third Judicial District at Anchorage (hereafter "the Bureau"). ^[26] The Bureau denied the application. ^[27] Subsequently, Brause and Dugan sued the State seeking to have the interpretation of the marriage statute denying same-sex marriage declared unconstitutional, and to have the State permanently enjoined from denying marriage licenses to same-sex couples. ^[28]

Before an initial hearing was held, the Alaska Legislature amended the marriage statute to eliminate the gender-neutral language and restrict marriage to one man and one woman. ^[29] The plaintiffs then amended their complaint to ask for a declaration that this statute was also unconstitutional. ^[30] They argued that the failure of the State to issue them a marriage license denied them due process and infringed their right to privacy under the Alaska Constitution. ^[31] The Attorney General strongly disagreed. ^[32]

[*pg 219]

1. Judge Michalski's Decision: A Critical Analysis. Judge Peter Michalski of the Superior Court of Alaska issued his memorandum and order on February 27, 1998. ^[33] Judge Michalski accepted the plaintiffs' constitutional arguments:

The court finds 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. ^[34]

To come to this conclusion, Michalski had to reject the definition of marriage as a union of a man and a woman. He openly did so, claiming that he was not questioning the State's marriage requirements, but rather scrutinizing the State's definition of marriage. ^[35]

In his analysis, Judge Michalski first considered the plaintiffs' privacy claims. While noting that the case did not implicate traditional notions of privacy (the right to be let alone), Michalski held that the choice of whom one marries is a private matter that the State cannot interfere with by...