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Same sex marriage (SSM) and civil unions

Part 2:
Attempts to legalize marriage for same-sex
couples in Alaska, between mid-1998 & 2014

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This topic is continued from the previous essay.

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wedding ringsTimeline of developments from 1998-JUL to 2014-OCT:

  • 1998-JUL-31: The Alaska Family Coalition was formed. Members include the former mayor of Anchorage, George Sullivan. The group describes itself as a:

    "... diverse, ecumenical group of citizens united around a common cause: preserving the institution of marriage." 1

That is, to continue the Alaska's prohibition of same-sex marriage, civil unions, and any other protections or benefits for same-sex couples and their children.

  • 1998-AUG-31: Superior Court Judge Sen Tan heard arguments to challenges to the proposed Measure 2 by both the AkCLU and Rev. Bess . He issued his judgment immediately after hearing the oral arguments, so that the case could be heard by the Alaska Supreme Court before the NOV-3 ballots had to be printed. Attorney Wagstaff had argued that Measure 2 is really a revision to the constitution, not an amendment. Revisions are beyond the authority of the legislature to place on the ballot. Judge Tan rejected this argument. He also ruled that the existing ballot description was acceptable.

  • 1998-NOV-3: The voters approved Ballot Measure 2 titled: "Constitutional Amendment Limiting Marriage." The vote was about 68% to 32%.   The ballot  contained the following description:

    "This measure would amend the Declaration of Rights section of the Alaska Constitution to limit marriage. The amendment would say that to be valid, a marriage may exist only between one man and one woman. It would also say that no provision of the Alaska Constitution may be interpreted by a court to require the state to recognize or permit marriage between individuals of the same sex."

It is the first time that an identified group had been stripped of constitutional rights in Alaska, and assigned second-class citizen status.

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Measure 2 was opposed by Alaskans for Civil Rights / NO on 2, 2 The League of Women Voters, the Alaska Democratic Party, the Alaska Civil Liberties Union, People for the American Way, Parents Families & Friends of Lesbians and Gays (PFLAG), and University of Alaska S.E Student Government. It was promoted by the Alaska Family Coalition.

Mary Ann Pease, spokesperson for the Alaska Family Coalition, said

"We are thrilled that the people of Alaska have voted in favor of preserving the institution of marriage as existing only between one man and one woman. We see this as a positive direction for the children of Alaska and throughout the United States."

Her second comment may seem odd because one of the main results of Measure 2 was to prevent same-sex parents from marrying and obtaining the security, status, and protections of marriage for all members of their family, including their children. However, at the time, most social and religious conservatives believed that homosexuality and bisexuality were choices that youths or young adults made. By prohibiting same sex couples from marrying, they felt that they would make same-sex relationships less likely because fewer people would choose homosexuality.

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission commented:

"If we were to allow same-sex marriage to be legalized, then we have sent the message to our society and to our young people that this is a perfectly normal healthy lifestyle choice, but in fact the Bible tells us in Romans 1 it is an unnatural, sinful choice. [The Apostle] Paul says it's against nature.

There's no mystery here. The homosexual and lesbian community, their agenda is clear. Their agenda is first the normalization and societal affirmation of their lifestyle and secondly the abnormalization and marginilization of those who believe homosexuality is unnatural. The homosexual community does not want tolerance; they want affirmation. That is something that someone who believes in biblical authority cannot give them..."

"To say that the Bible, both Old and New Testaments, does not condemn homosexuality as a particularly serious sin is nonsense. It is only in the last third of the 20th century when large segments of the Christian faith apostasied from any semblance of biblical Christianity and rushed headlong into the pursuit of the latest 'trendier than thou' theologian that there has been any question about what the Christian stance should be in regard to homosexuality." 6

Religious liberals have an entirely different interpretation of the six biblical passages that many people feel discuss homosexuality. For example, many liberals interpret Romans 1 as describing a group of heterosexual men and women who were formerly Christian, and who violated their basic nature by engaged in sexual behavior with members of the same sex during a Pagan orgy. The passage can be interpreted as implying condemnation of gays and lesbians who go against their basic nature by engaging in sexual behavior with members of the opposite sex.

The measure has many similarities to Proposition 2 in Colorado which prohibited towns and cities from passing legislation granting equal protections to gays and lesbians. The U.S. Supreme Court declared that Proposition unconstitutional. They reasoned that governments should not be in the business of identifying groups of citizens and specifically denying them fundamental human rights.

  • 1999-SEP-22: The court heard oral arguments in the case of Brause and Dugan v. State of Alaska. Judge Peter Michalski ruled that the passage of the 1998 amendment invalidated Brause and Dugan's claim for a marriage license. Their case was dismissed.

  • 2014-MAY-12: The quest for same-sex marriage in Alaska had remained relatively passive for almost fifteen years. Then a lawsuit "Hamby v. Parnell" was filed in District Court by five same-sex couples. Four had been legally married in another state and want Alaska to recognize their marriage. The fifth couple is unmarried, resides in Alaska, and want to be married there.

    They are supported by a team of three lawyers, including Heather Gardner who issued a press release saying:

    "Under current Alaska law, a couple who marries in Seattle and returns home to Alaska are married in the eyes of the law when their plane lifts off from Sea-Tac [airport], but are legal strangers when the flight touches down in Alaska. No Alaskan is a second class citizen."

    Actually, she is wrong. Measure 2 deprives same-sex couple the ability to marry and makes them all second-class citizens as long as the Measure 2 amendment to the state constitution remains active.

The Freedom to Marry web site states:

"Matthew Hamby, one of the plaintiffs in the case, who married his partner Christopher Shelden last year in Utah, said:

'We are taking a stand because marriage should be available to all loving couples. It’s important to us that our family is recognized by the State of Alaska and that we have the same rights and privileges as others'."

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2014-OCT-05: Current status of same-sex marriage in Alaska and the rest of the U.S.:

As of OCT-05, same-sex couples could routinely obtain marriage licenses and subsequently marry in 19 states and the District of Columbia. At that time, about 45% of Americans lived in areas of the country where same-sex couples could marry. There were 31 states where same-sex marriage was not permitted due to statutes passed by their state Legislatures or, more likely, by amendments to the state Constitutions passed by the voters. The ban in Alaska was the result of first of these amendments. It was passed in 1998. Most of the rest of these amendment date back to 2004 to 2008 long before polls indicated that most voters in the U.S. favored marriage equality. On OCT-05, there was at least one active lawsuit in each of these states seeking to legalize same-sex marriage.

Three-judge panels at a total of three U.S. Circuit Court of Appeals had issued rulings for four of these lawsuits during mid-2014. Three decisions were by a 2:1 vote; the fourth was unanimous. All four rulings were in favor of marriage equality. They were all appealed to the U.S. Supreme Court. Of particular interest to Alaska was a ruling by a three-judge panel in the 9th U.S. Circuit Court of Appeals upholding a Utah federal Court decision that legalized SSM in that state. Utah subsequently appealed that ruling to the U.S. Supreme Court and lost. More details. The ruling was stayed so that same-sex couples could not actually obtain marriage licenses and be married.

Media commentators at the time debated how the U.S. Supreme Court would respond to the decisions of the three Circuit Courts of Appeal. The Justices could grant certiorari -- decide to accept an appeal -- of none of the cases, of one case, or of a group of cases. The near universal consensus was that the high Court would select one or two cases, announce their decision to grant certiorari in the fall of 2014, hold hearings in the Spring of 2015, and announce their ruling in late 2015-JUN. Commentators speculated whether the high court's eventual decision would make marriage available to same-sex couples across the entire country. In 1967. the court did just that in another marriage-related case, Loving v. Virginia. The high court then made interracial marriages available throughout the U.S. At the time, 72% of adults in the U.S. opposed interracial marriage. Also, 48% felt that marrying a person of another race should considered a criminal act and prosecuted.

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2014-OCT-06: The surprise decision by the U.S. Supreme Court that directly affected Virginia and four other states:

This time, the U.S. Supreme Court marched to a different drummer.

On OCT-06, the high Court announced that it would not grant certiorari to any of the four lawsuits from three Circuit Courts of Appeals. 2 The four lawsuits involved were from five states:

  • Virginia which is under the juridsiction of the 4th Circuit Court of Appeals in the Eastern U.S. Other states in this Circuit Court are Maryland, North Carolina, South Carolina, & West Virginia.

  • Indiana and Wisconsin which are under the juridsiction of the 7th Circuit Court of Appeals in the Midwestern U.S. Illinois is also in this Circuit Court.

  • Utah and Oklahoma which are under the juridsiction of the 10th Circuit Court of Appeals in the Midwest and West. Other states in this Circuit Court are Colorado, Kansas, New Mexico, and Utah.

Same-sex marriage thus became final and the stays were lifted in all five states involved in the four lawsuits: Indiana, Oklahoma, Utah, Virginia and Wisconsin with the stroke of a pen.

Some minor housekeeping tasks were quickly cleaned up, and same-sex couples in these five states were able to start purchasing their marriage licenses, either on Monday, OCT-06 or -- in the case of residents of Indiana -- on the next day.

Having same-sex marriage suddenly come to five states had never happened before in U.S. history. Same-sex couples could marry in any of 24 states or the District of Columbia. This was very close to forming a majority of jurisdictions in the U.S. that had attained marriage equality. Some pro-marriage equality groups considered that once a majority of states attained marriage equality, and a majority of Americans lived in states with marriage equality, and support for same-sex marriage exceeded 60% then the U.S. Supreme Court would likely make marriage equality the law of the land in all 50 states.

Reactions by the Lesbian, Gay, Bisexual and Transgender community (LGBT) were mixed. There was much joy that marriage equality had come to loving, committed couples in five more states. The Internet was flooded with pictures of many happy couples. Some were holding their marriage licenses; others were getting married; still others were kissing. But the community was also saddened that there was now no possibility that the Supreme Court would rule marriage by same-sex couples to be legal across the entire country in mid-2015.

Religious and social conservatives were generally shocked at this sudden development. There were many references to lawless courts, to rogue judges, and to courts, Attorneys General, and Governors ignoring the will of the people. The latter was a reference to amendments to state constitutions that had banned marriage equality and were now found unconstitutional because they violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. There were calls for Congress to initiate a new amendment to the U.S. Constitution so that these two clauses longer applied to marriages. That would allow the voters in individual states to amend their state constitution to ban marriage for any group that was disfavored by a simple majority of voters, and have their amendments found constitutional by the courts. This is called the "tyranny of the majority." Preventing that was a major concern of the founding fathers of the U.S.

But the affects of the U.S. Supreme Court's decision on OCT-06 went far further than directly affecting five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. It also indirectly affected six more states. When a ruling of a Circuit Court becomes final, it normally becomes applicable to all of the other states under the jurisdiction of that Circuit Court. This would imply that same-sex couples in six other states with same-sex marriage bans, who were also under the jurisdiction of the 4th, 7th, and 10th Circuit Courts, should be allowed to marry. These states are Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. These will take a bit of time to sort out, because some of the legislators, Attorneys General and/or Governors in these states are strongly opposed to marriage equality. By OCT-24, the governments of Kansas, and South Carolina were still resisting marriage equality.

The ripple effect of the Supreme Court's decision of OCT-06 is a game-changer, It impacted five states directly. It either has or is expected to bring marriage equality to six other states indirectly. It is also expected to influence additional states as various federal courts take notice of the trend towards marriage equality in their own rulings elsewhere in the country.

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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 generally not active today.

  1. "American Civil Liberties Union of Alaska's" home page is at: http://www.acluak.org/
  2. "Alaskans for Civil Rights / NO on 2" had a home page at: http://members.tripod.com/  which is no longer online. The organization is listed in many online business directories, but we have been unable to find their home page.
  3. Jim Clarke, "Alaska Men Want Court to Throw Out Same Sex Marriage Ban," Associated Press, 1997-NOV-16
  4. Brause and Dugan had a home page at:  http://uk.360.yahoo.com/
  5. "Alaska," Lambda Legal, at: http://www.lambdalegal.org/
  6. Karen L. Willoughby, "Same-sex marriage loses by 70% in Alaska, Hawaii," Baptist Press, 1998-NOV-04, at: http://www.bpnews.net/

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Copyright © 1998 to 2014 by Ontario Consultants on Religious Tolerance
Latest update: 2014-OCT-24
Author: B.A. Robinson

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