The Struggle for Marriage Equality Comes Home to Alaska

alaska pride flag

Another potential landmark case in the nationwide struggle for marriage equality is finally coming home to Alaska.

Monday afternoon, Hamby et al. v. Parnell et al. was filed in the U.S. District Court for the District of Alaska, transmitted by attorneys Heather Gardner, Caitlin Shortell, and Allison Mendel. Summons will be served on the defendants, including Governor Sean Parnell, Alaska Attorney General Michael Geraghty, Commissioner of the Department of Health and Social Services William Streur, and others. The suit directly challenges the state prohibition on same-sex marriages (which voters amended the Alaska State Constitution to include back in 1998) asserting that the ban violates the Fifth and Fourteenth Amendments to the U.S. Constitution. [READ THE FULL LAWSUIT HERE.]

Plaintiffs bring this action to challenge the constitutionality of Article 1, Section 25 of the Constitution of the State of Alaska, which excludes same-sex couples from marriage and prevents the State of Alaska from recognizing valid same-sex marriages entered into elsewhere. Plaintiffs ask this court to declare that the referenced section of the Alaska Constitution and related Alaska Statutes… violate the equal protection and due process rights of Plaintiffs guaranteed by the United States Constitution and to enter an injunction 1) barring Defendants from enforcing… statutes violating Plaintiffs’ right to equal protection and due process, 2) requiring Defendants to authorize and issue marriage licenses to unmarried Plaintiffs and all those similarly situated and 3) to extend legal recognition under state law to the existing marriages of Plaintiffs lawfully married elsewhere and all those similarly situated.

Last month, the Alaska Supreme Court upheld a lower court ruling in Alaska v. Schmidt, finding that the state’s practice of denying benefits, such as property tax exemptions and job benefits (health insurance, retirement packages, etc.), to same-sex partners violated the Alaska constitution’s equal protection clause. The court found that same-sex couples are “similarly situated.”

Senior Justice Eastaugh noted in the court’s opinion that the same-sex couples involved in the suit were unable to receive the benefits only because they were unable to marry. Their inability to marry was not of their own volition, but instead because of the state’s prohibition on same-sex marriage.

Many same-sex couples are no doubt just as truly closely relat[ed] and closely connected as any married couple, in the sense of providing the same level of love, commitment, and mutual economic and emotional support, as between couples, and would choose to get married if they were not prohibited by law from doing so.

However, the ruling did not take into consideration the state’s constitutional amendment banning marriage equality. Instead, the court limited its scope to the denial of benefits to same-sex partners, and the violation of the equal protection clause that denial constituted.

Hamby/Shelden

Hamby/Shelden

In Hamby, five same-sex couples seek to join the precedent set in Schmidt with those set in 1967’s Loving v. Virginia (finding that the freedom to marry “is one of the basic civil rights of man, fundamental to our very existence and survival”) and 2013’s U.S. v. Windsor — which struck down Section 3 of the Defense of Marriage Act, restricting federal interpretation of “marriage” and “spouse” only to opposite-sex marriages.

Attorneys Shortell and Gardner spent a lot of time interviewing couples interested as signing on as plaintiffs. The five same-sex couples are all Alaskan residents with diverse backgrounds. Matthew Hamby and his partner, Christopher Shelden, were married in Canada in 2008, and renewed their vows in Utah last year, after that state legalized same-sex marriages (there has since been a stay of that ruling while the state appeals). “Despite the fact that they have been legally married for six years, they remain legal strangers to each other in the eyes of the State of Alaska,” the suit contends.

“We are taking a stand because marriage should be available to all loving couples,” Matthew Hamby said in a press release on Monday.

Susan Tow and Christina Laborde have a similar story. Tow is a retired U.S. Air Force veteran and mother of two sons. While deployed between 2008-2009, Laborde cared for the children in their Anchorage home (Alaska’s same-sex marriage ban, however, complicates the adoption process). The couple entered into a civil union in Hawaii in 2012, and married in Maryland the following year.

Sean Egan and partner, David Robinson, lawfully married in New York State in 2011. Egan came to Alaska in 2005 and works for the University of Alaska. Robinson grew up here and serves in the Air Force. Tracy Wiese and Katrina Cortez, likewise, were married in Hawaii in March of this year. They are Alaskan residents raising their three-year-old daughter. “Unilaterally,” their lawyers assert, “Alaska has voided their legal status and their rights and responsibilities as married people.”

Finally, Stephanie Pearson and Courtney Lamb live in Anchorage:

Plaintiffs Lamb and Pearson are an unmarried same sex couple in a committed relationship who wish to marry. Each wishes to publicly declare their love and commitment before their community in Alaska, to join their lives together in Alaska and enter into a legally binding commitment to each other in Alaska, and to share in the protections and security that marriage provides. Yet Alaska law denies them this fundamental freedom[.]

Hamby seeks to overturn the state’s discriminatory practice of selectively denying the act, benefits, and recognition of marriage to same-sex couples, contending that Alaska’s exclusionary policy “cannot stand under any level of scrutiny, because the exclusion does not rationally further any legitimate government interest. It serves only to disparage, exclude, and injure gay and lesbian couples and their families.”

“We feel strongly and are hoping this has a positive influence,” Shortell told me Monday afternoon, over the phone. “Alaska has never had a constitutional amendment [like the same-sex marriage ban] that deprives fundamental rights.”

Views on marriage equality have changed quite dramatically in the years between 1998 and today. For the first time ever, a February report from Public Policy Polling found a majority of Alaskans supported same-sex marriage — by the  slimmest of margins: 47 to 46 percent (up four points from just a year previous). A wider margin — 71 percent — said they supported granting same-sex couples legal rights through civil unions. Just 26 percent opposed extending any legal recognition at all.

The Alaska state legislature heard a bill modeled after the Employee Non-Discrimination Act for the first time last year, and this past session, Senate Minority Leader Hollis French (D-Anchorage) proposed a constitutional amendment to repeal the ban. Neither bill advanced, and the GOP-dominated legislature managed to pass another law promulgating the state’s exclusionary policy (now deemed unconstitutional by the court), despite stalwart objection by Democrats.

Article 1, Section 25 of the Alaska Constitution mandates that “[t]o be valid or recognized in this State, a marriage may exist only between one man and one woman,” but that definition has never been challenged in court. With the State Supreme Court’s ruling in Schmidt, and the U.S. Supreme Court striking down Section 3 of the Defense of Marriage Act last June, a lot of cases that did not have standing to represent that challenge, now do.

Depending on how The District Court rules on Hamby, Alaska is poised to become the next in a string of states to free itself from the antiquated prohibition on marriage equality voters enacted over a decade ago. Most recently, a Pulaski County, Arkansas Circuit Judge Chris Piazza ruled in Wright v. Arkansas that the state’s ban — “Marriage consists only of the union of one man and one woman — was unconstitutional. Citing Loving v. Virginia, Piazza wrote: “The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.”

Hamby will join 72 other cases, spanning 31 states and territories, according to the Freedom to Marry campaign to win marriage equality nationwide.

 

2 Comments
  1. Sheri Whitethorn
    May 12, 2014 | Reply
  2. Jacob Dugan-Brause
    May 12, 2014 | Reply

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