U.S. District Judge Timothy Burgess heard oral arguments Friday in Hamby v Parnell, a challenge to Alaska’s constitutional ban on same-sex marriage.
The courtroom at the Federal Court Building in Anchorage was full with additional seating and a live feed provided in a second courtroom. Residents of Juneau and Fairbanks were also present via telecommunications.
Each side was allotted 30 minutes by Burgess. Allison Mendel, representing the five plaintiff couples, told Burgess she would reserve the bulk of her time for rebuttal given the changing legal landscape surrounding same-sex marriage.
On Monday, the U.S. Supreme Court declined to hear cases from states trying to protect same-sex marriage bans that had been overturned. Then on Tuesday, a judge in the Ninth Circuit, of which Alaska is a part, ruled that same-sex marriage bans in Idaho and Nevada were unconstitutional. The decision was in Latta v Otter.
Hamby Plaintiffs Point to PrecedentMatt Hamby and husband Chris Shelden address supporters in front of the courthouse.
Mendel said that Latta changed the landscape after the plaintiffs’ brief. She argued that the Ninth Circuit decision in Latta was controlling in the Alaska court, despite a stay in Idaho from Supreme Court Justice Anthony Kennedy after Idaho challenged the Ninth Circuit ruling.
Burgess asked Mendel on what basis he could find a violation in Alaska of both equal protection and due process, as the plaintiffs argued. She acknowledged that Latta only ruled on equal protection, but said other circuits, the Fourth and Tenth, had addressed equal protection.
Burgess asked Mendel if Latta was even necessary for him to make a ruling. No, she argued, SmithKline Beechum Corp v Abbott Laboratories, also in the Ninth Circuit, could guide Burgess’ decision. That case said equal protection prohibited discrimination based on sexual orientation in jury selection.
Mendel said that the state’s contention that Alaska Supreme Court cases proved same-sex couples were entitled to the same benefits as married couples did not hold up. Those cases showed that same-sex couples had to sue for each individual right, whereas “the panoply of rights married people take for granted” accrue automatically, she said.
For example, Mendel said it was unclear if same-sex couples that married in other states could divorce in Alaska. This represented a “huge barrier” to arranging their legal affairs. In effect, said Mendel, same-sex couples in Alaska were in a “second tier kind of relationship.”
Given Kennedy’s stay in Idaho, Burgess asked if Latta were still binding. Two cases indicated that it was, argued Mendel, Wedbush, Noble, Cooke, Inc. v Securities and Exchange Commission and Yong v Immigration and Naturalization Service. In both cases, the Ninth Circuit ruled that a stay did not apply to the case at hand while another was pending appeal.
Burgess requested to hear next from Caitlin Shortell, representing the plaintiffs, regarding due process. Shortell said that though Latta had been decided solely on equal protection, Judge Stephen Reinhardt had written a “persuasive” concurrence invoking due process, which Shortell asked Burgess to adopt. He seemed unconvinced, and Shortell struggled a bit to articulate her position.
The state, argued Shortell, was defending discrimination on the grounds that it had the right to define marriage, as well as the voters’ alleged right. But a democratic law could not stand if it failed constitutional scrutiny, she said.
The state was also arguing about child rearing, said Burgess, but Shortell said this was connected to voters’ rights and speculation about voters’ reasons for banning same-sex marriage in 1998. Latta rejected the argument about procreation, she said, while finding the institution of marriage to be constantly changing.
The State Defends an Untenable Position
Assistant Attorney General William Milks argued on behalf of the state Friday. He initially seemed reluctant to argue the merits, instead slowly rehashing the legal events of the week already relayed by Mendel. The ban was the result of direct democracy, he said, and the plaintiffs sought “extraordinary relief” to overturn that.
United States v Windsor, the Supreme Court case that struck down the Defense of Marriage Act, did not state that same-sexSusan Tow and wife Chris Laborde with sons Lakota and Dylan, and Dylan’s girlfriend Erica, outside the courthouse.
marriage was a constitutional right, said Milks, and the Court’s refusal to hear states’ appeals this week did not set precedent. He pointed to the stay in Idaho.
Burgess remarked that Nevada Governor Brian Sandoval had withdrawn the state’s brief based on SmithKline, let alone Latta. Milks responded that he didn’t know Sandoval’s motivation. Potentially it stemmed from confusion over Kennedy’s stay, he suggested. That stay initially applied to both Idaho and Nevada until Kennedy issued a correction.
Milks said that the state’s brief covered issues before the Ninth Circuit ruled in Latta. Burgess asked if the state were changing its position based on either Latta or SmithKline. Though it seemed likely based on Milks’ behavior, he said that no, the ban had been passed by the voters. But Latta put the state in an “awkward” position. Milks said it seemed to be controlling and dispositive, though it wasn’t final.
Burgess asked if the court would reach the same conclusion if it analyzed Hamby under SmithKline. We would urge you not to, joked Milks. SmithKline was not a challenge to the state constitution, nor did it apply to marriage, he argued. The law does not change the traditional definition of marriage as between a man and woman, said Milks. Alaska voters had their reasons for codifying it as such, but it would be impossible to find out what those were.
Does Latta apply, asked Burgess. Milks seemed reluctant to answer directly, though he did say it was precedential and appeared to control the court. However, Idaho’s ban still stood, he said, and Latta was not resolved.
The Supreme Court has been very careful about marriage, said Milks, because ruling on it takes the public process away from the voters. The definition of marriage between a man and a woman is deeply rooted in the nation’s history and tradition, he said, while same-sex marriage didn’t exist when the Fourteenth Amendment was written.
Milks compared the debate to the difference between removing life support, which the Court has deemed legal, and assisted suicide, which it has not. The definition of marriage was likewise very narrow.
The court could either ignore Latta and only consider the opposing briefs, suggested Milks, or it could recognize that Latta was not the final word on same-sex marriage from the Ninth Circuit.
The Debate is Moot
During her rebuttal, Mendel read from Noble, Cooke, saying Burgess was bound to follow Latta, rather than make the plaintiffs wait for a remedy. They were entitled to a decision, she said. The state’s argument that the status of same-sex marriage could change soon after Burgess’ decision could be said about any recently argued case. The state could always appeal Burgess’ decision if Latta were overturned, said Mendel.
Shortell got another crack at convincing Burgess of a violation of due process. She cited Loving v Virginia, the case that ended state bans on interracial marriage. The plaintiffs in Hamby, like Loving, dealt with facial discrimination and were denied the right to due process.
Burgess began to conclude the proceedings before Milks jumped up and asked that, should Burgess rule for the plaintiffs, he issue a stay of the decision. Alaskans, said Milks, wanted an orderly process, not the chaos experienced by other states after similar rulings. They did not want to have a similar situation to Idaho, where couples went to court houses only to learn of Kennedy’s stay.
At that point, Mendel rose and announced that she had just learned of the Supreme Court’s removal of the stay in Idaho, prompting applause from the courtroom spectators.
Burgess concluded quickly, saying this was a “fast moving area of the law” and that he would render a decision soon.
With the removal of the Court’s stay, Latta is now the unquestioned precedent of the Ninth Circuit. Barring some serious shenanigans, Burgess will rule for the plaintiffs and same-sex marriage will become legal in the state of Alaska.