Home Editorials Four Years After ‘Don’t Ask Don’t Tell,’ Alaska House GOP Setting Discriminatory...

Four Years After ‘Don’t Ask Don’t Tell,’ Alaska House GOP Setting Discriminatory Policy for LGBT Servicemembers

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four years after dadt alaska house gop setting - cover

For those of us who suffer from the incurable malady of not being a native-born Alaskan, we all have stories about moving here. There’s no real way to convey the experience.

There are things about living in Alaska – even the “metropolitan” Anchorage – that are just different. Most of them are desirable: the openness, the skyline, the amazing people, the separation (I’m reminded of the George Burns quote: “Happiness is having a large, loving, caring close-knit family in another city”).

One frustrating, although obviously necessary, chore upon arriving here is updating your drivers license. State law requires that any new resident surrender his or her out of state license in order to obtain an Alaska drivers license. This means forfeiting the right to vote in the district you formerly lived.

But what if you didn’t come to Alaska with any desire to stay? What if moving to Alaska was a job requirement? This happens to hundreds of active duty service men and women every year. So, the state decided to exempt them from the requirement. They can hold onto their out of state licenses.

This session, North Pole Republican state representative Doug Isaacson wants to take it one step further, and offer military spouses the same exemption.

“It’s another affirmation of our friendliness to the military,” Isaacson told the House Military and Veterans Affairs committee, introducing the bill at the beginning of February. “Alaska is a military friendly state, and we value not only our military members, but also their families. So, it should be of great importance to Alaskans to make the military transition away from home as easy as possible, while they provide a great service to our country.”

While, obviously, acquiring an Alaska state drivers license is not a hardship that likely registers on most military families’ radars, it’s a courtesy the state can certainly afford them. One of those things likely to fall neatly into the “least we can do” category. And it does matter.

“Is it hard to get a new driver’s license? Of course not,” Cathy Randolph told the committee in written testimony. Randolph’s husband has served in the Air Force for 20 years; a career that has taking them to Nebraska, Missouri, New Mexico, Virginia, Germany, and Alaska. “But when one is away from home, is it ‘just’ a driver’s license or is it a connection to our ‘home state’ while we are away?”

Constitutional Hiccup.

The public comment period was stacked with supporters for the bill, speaking before a committee that was in obvious agreement. And they would have gotten away with it too, if it weren’t for one meddling assistant attorney general.

“We have one concern from the department of law,” Erling Johansen told the legislators. “If you’d like to avoid possible constitutional challenge… it would be wise to accommodate same sex couples in the bill; same sex domestic partners. We have a couple cases from 2005 and 2011 that spousal exemption was subject to an equal protection challenge.”

The 2005 Alaska Supreme Court case broached by Johansen, ACLU v. Alaska, was a landmark decision centered around whether the state and municipality of Anchorage could offer work benefits (health insurance, retirement funds, etc.) to straight spouses, while denying them to same-sex partners. The language distinction there is important; the justices were forced to compare married opposite-sex couples to same-sex partners, because we added an amendment to our state constitution in 1998 defining marriage as between one man and one woman (Article I, Section 25).

But that added provision doesn’t negate other constitutional protections. In the court’s opinion, Justice Robert Ladd Eastaugh pointed to two other provisions, emphasizing that when “the state or a political subdivision acts in this capacity,” i.e., offering benefits to one group while denying them to another, “it is subject to the overarching principles set out in Article I, Section 1, and Article XII, Section 6, of the Alaska Constitution.”

Justice Eastaugh wrote:

Programs allowing the governments to give married workers substantially greater compensation than they give, for identical work, to workers with same-sex partners cut against these constitutional principles yet further no legitimate goal of the governments as public employers.

While not directly affecting the compensation of military spouses, Isaacson’s HB212 would unarguably present a state-sanctioned allowance afforded to one group while arbitrarily denied to another. 

The Fix.

On February 11, the House Military and Veterans Affairs committee took up the proposal once more. Representative Max Gruenberg (D-Anchorage) offered an amendment that added “same sex partners” to the list of military family members who would qualify for the exemption.

He also inserted a plethora of requirements, many of which most straight couples can skip after a night in Vegas. The same-sex couple must:

  • Be 18 years old and mentally competent.
  • “Have been in an exclusive, committed, and intimate relationship with each other for the last 12 consecutive months and intend to continue that relationship indefinitely;”
  • “Have maintained a household together at a common primary residence for the last 12 consecutive months and intend to maintain a household together indefinitely;”
  • “Consider themselves to be members of each other’s immediate family;”
  • “Are not legally married to another person;”
  • “Have not executed an affidavit affirming same-sex partner status with another person within the last 12 months;
  • “Are each other’s sole domestic partner and each is responsible for the welfare of the other;”
  • “Share financial obligations, including joint responsibility for basic living expenses and health care costs;”
  • “Are not related to each other to a degree of closeness that would preclude them from marrying each other in this state if they were of the opposite sex[.]”

Reading that last requirement one more time.

Gruenberg had to write a requirement stipulating that same-sex couples could not receive the exemption if they were any more closely related to their partner than first cousins. Because, in Alaska, first-cousin marriage is legal. So long as it’s an opposite-sex, first-cousin marriage.

And that’s where I have to take a moment to pinch myself and remember that I’m not writing satire. This is real. These are our laws.

During the February 11 meeting, a second assistant attorney general, Rachel Witty, contradicted her colleague’s concern that excluding same sex partners represented a violation of the state’s equal protection clause. Witty felt that any possible issues of constitutionality would stem, not from the ACLU v. Alaska ruling, but from 2011’s Superior Court decision in Schmidt v. Alaska (the second case mentioned by Erling Johansen). Schmidt broadened the findings of ACLU to include property tax benefits. The state appealed to the Alaska Supreme Court, which could offer a decision any day.

Witty agreed with a suggestion from Representative Pete Higgins to omit the inclusion of same sex partners and “wait and see” how the appeal shakes out. Representative Gabrielle LeDoux (R-Anchorage) offered a rather staggering assertion that legislators aren’t supposed to take superior court rulings into consideration when crafting laws. Really. And she’s a lawyer.

The committee voted down the amendment, 3-2. Democrats Gruenberg and Foster voted in support, with Republicans Higgins, Hughes, and LeDoux dissenting. Next, with four votes recommending passage, the committee moved the bill. Its next stop will be the House State Affairs Committee, where adoption of a similar amendment has even less of a chance. 

One step forward, two steps back.

The United States military abandoned its discriminatory policies against lesbian, gay, and bisexual service members with the repeal of Don’t Ask Don’t Tell four years ago. In every state, same-sex spouses are afforded access to military housing, insurance and retirement benefits, hospital visitation rights, educational and employment benefits, alongside a cadre of other provisions. In 17 states, from which many of the over 50,000 military personnel stationed in Alaska hail, same sex marriage is legal. Factor in those states that recognize unions and partnerships, and that number jumps to 27 — a majority, with several more close behind. To the men and women in committed same sex couples — who are no less “brave” and whose service is no less “honorable” then the straight military personnel that Isaacson has narrowed an otherwise commendable bill to include — this would fairly clearly be seen as a huge step backward in the pursuit of equal rights for all.

The bill may seem small in size and scope; seemingly innocuous and not worth making a big deal over. But the decision to implement the exemption in a segregated manner works, both, against the intended purpose of the bill and the efforts of the military (and many states) to normalize inclusion. The underpinning importance of anti-discrimination policies is that the allowances that opposite-sex couples take for granted are extended universally. The goal is ubiquity.

The justifications for the bill are clear. Spouses do not make the decision of where their significant others are stationed. The requirement that service members’ families forfeit residency in their home state (when they intend to return after serving their country) is an unnecessary burden.

Representative Hughes acknowledged this personally when she told the story of her daughter, who served overseas, and “was under great stress when she moved to Germany, knowing that she had to get her drivers license… so I can see where this is the right thing for Alaska do. And I do also see how it will also send a signal to the commanders that Alaska continues to be military friendly and we’re going to keep improving that.”

Important thing to do for some people, but not others?

This is not an improvement. This is not sending a positive signal to commanders, service members, or their families. And it is clearly reaffirming the hostility the house repeatedly has displayed to our LGBT community — in this case, for no apparent reason other than to create division and put legislators’ own homophobia and intolerance on full display.

Again.

1 COMMENT

  1. I am certain you meant to say Justice Eastaugh (I know him well) rather than “Justice Ladd”. Otherwise excellent post. Thanks