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Same sex marriage (SSM) and civil unions

Part 1:
Attempts to legalize marriage for same-sex
couples in Alaska, between 1994 & mid-1998

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wedding ringsTimeline of developments from 1994 to 1998-JUL:

bullet 1994-AUG-4: Jay Brause and Gene Dugan filed an application for a marriage license. With the exception of being of the same gender, they otherwise satisfied all of the requirements of the marriage act. The Office of Vital Statistics denied their application. They filed suit in the Alaska Superior Court.

Attorney Robert Wagstaff presented arguments before Superior Court Judge Peter Michalski. The plaintiffs asked that the existing Marriage Code be declared unconstitutional because it violates two rights guaranteed by the Alaska constitution: their rights to privacy (their right to be let alone) and their rights of equal protection. Wagstaff pointed out that there are over 100 state statutes that provide rights and protections to married couples which are not available to persons of the same sex who live together in a permanent partnership. The Alaska Constitution forbids gender-based discrimination, yet is withholding privileges from Brause and Dugan solely because of they are both male.

bullet1995-MAR-3: Representative Normaon Rokeberg (R) introduced House Bill 227 to restrict marriage to one man and one woman. It was passed by the House on 1996-FEB-28.
bullet1996-MAR-14: Rep. Lyda Green (R) introduced Senate Bill 30 to restrict marriage to one man and one woman. It is entitled "An Act clarifying a statute relating to persons who may legally marry." It states, in part, that:

"Marriage is a civil contract entered into by one man and one woman...A marriage entered into by persons of the same sex, either under common law or under statute, that is recognized by another state or foreign jurisdiction is void in this state, and contractual rights granted by virtue of the marriage, including its termination, are unenforceable in this state...A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage." 1

It was passed by the Senate Health, Education and Social Services Committee, by the Senate, and by the House. Governor Tony Knowles (D) did not sign the bill, but rather allowed the bill to become law.

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bullet

1998-FEB-3: The Senate Health, Education and Social Services Committee introduced Senate Joint Resolution 42. It proposed "an amendment to the Constitution of the State of Alaska relating to marriage." It would add a Section 15 to the Constitution, declaring that:

"Each marriage contract in this State may be entered into only by one man and one woman. The legislature may, by law, enact additional requirements relating to marriage."


bullet 1998-FEB-27: Superior Court Judge Peter A Michalski issued his decision. It was similar to that of Circuit Court Judge Kevin Chang in a comparable case in Hawaii: that the choice of a spouse is a fundamental human right for all persons. He ordered the state to show a compelling reason why heterosexuals should be given special marriage rights while homosexuals are prohibited from marrying.

In his ruling, he stated that:

"It is the duty of the court to do more than merely assume that marriage is only, and must only be, what most are familiar with. In some parts of our nation mere acceptance of the familiar would have left segregation in place. In light of Brause and Dugan's challenge to the constitutionality of the relevant statutes, this court cannot defer to the legislature or familiar notions when addressing this issue."

He ruled 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."

On the assertion that Brause and Dugan's right to privacy had been abridged, the Judge stated that on the surface, it might appear that the constitutional privacy clause might not apply. "...after all, they are seeking public recognition of a same-sex marriage." But he asserted that the selection of a marriage partner

"... is personal, intimate, and [thus is] subject to the protection of the right to privacy."

On the assertion that their equal protection had been abridged, the Alaska Constitution says in Article 1, Section 3 that

"No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex or national origin."

Judge Michalski's decision found:

"... a person's choice of life partner to be a fundamental right. The consequence of this decision is that any limitations on this right are subject to the strict scrutiny standard established by the Alaska Supreme Court."

He concluded that:

"The parties are directed to set necessary further hearings to determine whether a compelling state interest can be shown for the ban on same-sex marriage found in the Alaska Marriage Code."

The State appealed Judge Michalski's ruling to the Alaska Supreme Court. The legislature passed a resolution urging the court to act quickly and overturn the Superior Court ruling. There were no further developments.

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bullet

1998-JUL-17: Rev. Howard Bess is a Baptist pastor of the Church of the Covenant near Wasilla, AK. He and his wife are close friends of the Brause and Dugan couple. With reference to Measure 2 -- the proposed constitutional amendment -- he said:

"It just seems to me that for people who are sincerely religious in the Legislature, for them to come along and want to codify their religious convictions in our state constitution just seems short-sighted, in my eyes, and it needs to be nipped in the bud."

He filed a lawsuit, claiming that:

bullet The amendment would violate the equal protection clause in the 14th Amendment to the U.S. constitution.
bullet It also infringes on the separation of powers, because it instructs judges on how they can interpret the constitution.
bullet It also would allow the legislature to criminalize all kinds of activities related to marriage, like a gay couple calling themselves married or arranging a religious union service.

Their lawyer, Robert Wagstaff, accused the legislature of being "on a divine mission...If the constitution stops it, [then] they're out to change the constitution." They also want to change the ballot title from: "Constitution Amendment Limiting Marriage" to "Constitutional Amendment Denying Homosexuals Fundamental Rights."


bullet

1998-JUL-24: Republican lawmakers sued Lt. Governor Fran Ulmer (D). One of her tasks is to describe impartially each amendment and initiative presented to the public. They claim that she distorted the meaning of the anti-gay marriage initiative when she started her summary with:

"This measure would amend the Declaration of Rights section of the Alaska Constitution to limit marriage."

The Republicans assert that the word "limit" is incorrect

"because as of this date no nation in the world and no state in this country recognizes or has ever recognized homosexual same-sex marriage."

They asked the Superior Court to force Ulmer to use an earlier draft of her summary which begins:

"This measure would add an amendment to the Alaska Constitution on marriage."


bullet

1998-JUL-30: The American Civil Liberties Union of Alaska (AkCLU) 1 filed a lawsuit against the state, seeking to cancel Measure 2. Executive Director Jennifer Rudinger stated that:

"Our whole system of government in Alaska, as set forth in the Alaska Constitution, is based on the fundamental notion that all people are entitled to equal protection under our laws. Measure 2 so radically alters this underlying principle of equality that it amounts to a revision of the Alaska Constitution and not an amendment at all."

Revisions have to be first approved by a constitutional convention. Amendments can be sent directly to the voters by the legislature.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Alaskans for Civil Rights / NO on 2" have a home page at: http://members.tripod.com/ 
  2. Jim Clarke, "Alaska Men Went Court to Throw Out Same Sex Marriage Ban," Associated Press, 1997-NOV-16
  3. Brause and Dugan had a home page at:  http://uk.360.yahoo.com/
  4. The Christian Coalition of Alaska had a web page at: http://www.alaska.net/. It is now offline.
  5. "Alaska," Lambda Legal, at: http://www.lambdalegal.org/

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Copyright � 2002 to 2014 by Ontario Consultants on Religious Tolerance
Latest update: 2014-OCT-14
Author: B.A. Robinson

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