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Recent Bill Signing Ignores Court Ruling Against Discrimination

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This past Tuesday, California Governor Jerry Brown signed Senate Bill 1306 into law, officially updating the legal definition of marriage to “two persons,” meaning that wherever the law refers to someone’s “spouse” in California, it means whoever one person is married to, irrespective of gender.

While it may sound trivial, it’s anything but.

The U.S. Supreme Court ruling in United States v. Windsor struck down the restrictive definition of “spouse” in Section 3 of the “Defense of Marriage Act,” granting married same-sex couples the same federal protections that opposite-sex couples enjoy — social security, veterans’ benefits, health insurance, retirement savings, etc.. But the court cannot enforce its own rulings. That enforcement falls to the federal and state governments. The Court instructed them to change federal and local laws to comply with their decision.

Take drivers licenses, for example.

California offers exemptions to active duty service members and their spouses while stationed in California — so that each can retain their home state residence and license. It’s a basic, voluntary agreement made by the state to both honor those serving and make their lives a little easier.

Same-sex couples are afforded the same rights as opposite sex-couples in the U.S. military, subsequent to the 2011 repeal of the discriminatory “Don’t Ask Don’t Tell” (DADT) policy. However, the agreements made by the state in relation to military families is outside of their jurisdiction.

Until last week, in California, “spouse” still was defined as a union between a “man and woman.”

The rule change in California, to catch up to the Supreme Court’s decisions, is a positive step forward. Many states, however, have much catching up to do. Using the same example of drivers license exemptions for military spouses, California is just one of 17 states to offer that courtesy. And last Monday, Alaska became the 18th. Governor Sean Parnell signed House Bill 212 into law, sponsored by Representative Doug Isaacson (R-North Pole).

The military recognizes same-sex marriages, but Alaska chose to bind the exemption to the state’s definition of the term: between one man and one woman. Given that the intent of the exemption is to allow service members’ families to retain residency in their home states (“easing the regulatory burdens on military families,” as a press release from the governor’s office described it), it’s a strange exercise to impose the limitations on rights, as prescribed by our constitution to Alaskans, to service members recognized as temporary residents.

The issue did not go unmentioned last session, as Isaacson carried it through the state legislature. Assistant Attorney General Erling Johansen broached the topic during the bill’s first stop in the House Military and Veterans Affairs Committee: “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.”

Democrats offered amendments to include spouses in same-sex marriages four different times, but Republicans in the majority shot each down. They defended their opposition by citing the legal opinion of another Alaska Assistant Attorney General, Rachel Witty. Witty conceded that there was a potential constitutional issue with excluding LGBT service member’s spouses “depending on how the Alaska Supreme Court were to rule in [Alaska v. Schmidt.]”

Alaska v. Schmidt was a lawsuit filed four years ago, and contended that the state’s policy of recognizing property tax exemptions for senior citizens and disabled veterans in opposite-sex partnerships, while denying the same exemptions to same-sex couples, violated the state’s equal protection clause. Superior Court Justice Robert Ladd Eastaugh agreed, writing in the opinion that when “the state or a political subdivision acts in this capacity, it is subject to the overarching principles set out in Article I, Section 1, and Article XII, Section 6, of the Alaska Constitution.”

Witty, who represented the state in the Schmidt case in superior court, told the House Military and Veterans Affairs Committee that the state was, at the time, appealing that decision to the Alaska Supreme Court.

Representative Pete Higgins (R-Fairbanks) responded:

So the, if for whatever reason, down the road, if the position does change, then the state would then be under obligation to change whatever bills that we pass through this legislation. So, in essence, we really shouldn’t be concerned about this at this point and pass the bill as its original form and we’ll go from there. I mean, am I understanding that correct?

“I think that a wait and see approach such as you suggest would not be an unreasonable one,” Witty responded, adding: “Because, as you note, there would be a number of laws that would need to be changed and could perhaps even be done by regulation depending on the statute and the language of the statute.”

Representative Gabrielle LeDoux (R-Anchorage) oddly asserted that Superior Court rulings are not to be considered precedent by either a higher court or the legislature. A point Representative Max Gruenberg (D-Anchorage) refuted. She then reiterated and reaffirmed Witty’s comments:

As far as I’m concerned, I’d rather take a wait and see [approach]. You know, we have the court case pending — the Schmidt case pending. The court will probably be issuing a decision sometime this year. And, depending upon the court’s decision, we will either proceed as we have been or there are going to have to be changes in law or regulation in a number of statutes. There’s no point in singling out this particular bill right now.

Two months later, HB212 cleared its final hurdle before reaching the governor’s desk, passing the senate unanimously. And two months after that, the Alaska Supreme Court upheld the superior court’s ruling in Schmidt. Meaning, according to Representatives LeDoux and Higgins (and Ms. Witty in her capacity representing the Department of Law), both the governor and the legislature have a lot of work to do bringing existing law into compliance with the decision.

The term “spouse” appears countless times throughout state statutes covering virtually every issue under the sun — all currently fashioned in a way that essentially ignores the existence of same-sex couples. While the Alaska Constitution defines a marriage as between one man and one woman, it says nothing about what constitutes a spouse, and the court ruling says that any imposed “spousal limitation that facially discriminates against same-sex domestic partners” violates the equal protection clause.

Representative Max Gruenberg told me, in light of the ruling in Schmidt, he wasn’t sure how to proceed, noting the volumes of instances where laws would need to be changed. He said if it were up to him, he’d do it “in a heartbeat.” He cautioned, however, that the comments offered by his colleagues, LeDoux and Higgins, wouldn’t necessarily result in immediate corrective action. “There’s a lot of difference between politicians talking and then actually following through.

Governor Parnell could, if he chose, temporarily change the law to adhere to the Court’s edict. Article 3, Section 16 grants him the power to “enforce compliance with any constitutional or legislative mandate[.]” However, HB212’s unconstitutionality was not addressed during the bill signing.

By Rep. Higgins’ own admission, the legislature now has the “obligation to change” bills supporting discrimination. However, neither Higgins or LeDoux responded to inquiry. Isaacson’s office said that he was unavailable for comment.