Same sex marriage (SSM) and civil unions in Alaska
Part 4: 2014-OCT: Same-sex couples apply for marriage
State requests emergency stay from
Court. It is denied. One couple marries.
OCT-17: More couples marry. It may be all over.
OCT-21: Governor Otto requests en banc review
before the 9th Circuit Court of Appeals.
2014-OCT-13: Same-sex couples in Alaska apply for marriage licenses; one gets married (Cont'd):
Anne Hillman from KSKA radio reported:
"Courtney Lamb and Stephanie Pearson were part of the lawsuit seeking to overturn the gay marriage ban. They were first in line in Anchorage to apply for a marriage license.
While they were in line waiting for the office to open, Lamb said to Pearson
"This is the longest 20 minutes of my life."
They had brought a printed copy of Judge Burgess' ruling just in case they had to prove their right to obtain a license. It wasn't necessary.
The couple's 72 hour waiting period will expire on Thursday morning, OCT-16 at 8 AM. They plan to marry at 8:30 A.M.
Ms Hillman continues:
"Ann Marie Garber also filed first thing Monday.
"She said, 'It feels very surreal. I've been out since I was 17 and I had no idea this day would come in my lifetime.' 1
Couples who live outside of the three main cities, Anchorage, Fairbanks and Juneau, obtain their licenses in local state courts. Kristine Hilderbrand, 30, and Sarah Ellis, 34, live in Barrow, AK and went to their local courthouse early on Monday morning to apply for a license. They were surprised to learn that the judge, Magistrate Mary Treiber, was willing to waive the normal three-day waiting period and marry them that afternoon.
Kristine Hilderbrand said:
"It’s a little surreal. We’re not super activists or anything. We weren’t going into it intending to break new ground. We just really wanted to get married and it all fit together. We’re really blessed to be the first ones and really happy to throw that into all the excitement."
Jacob and Eugene Dugan-Brause, the couple who started the 15 year path towards marriage equality during 1994-AUG now live in London, England. They were asked if they had any comments to make about Judge Burgess' ruling. They replied by email, simply:
"Too much for words, really." 2
2012-OCT-13: The state requests an emergency stay of the District Court's ruling and appeals case:
Two Alaska Assistant Attorneys General -- William Milks and Kevin Wakley -- filed an eight page "Emergency motion for stay pending appeal" with the U.S. District Court for the District of Alaska. 3 Although the county clerks have been issuing marriage licenses to same-sex couples since Monday OCT-13, the state requires a 3-day waiting period. Thus, if the court can reply quickly enough and if the court grants a stay, it could have been applied in time to prevent any of these couples from actually marrying.
The emergency motion says that a stay is needed:
"... to avoid chaos in the administration of Alaska’s marriage laws pending ultimate resolution of this fundamental issue."
Attorney General Michael Geraghty (R) said that the ban should be preserved in place for now, because the status of same-sex marriages is in a state of flux. He said:
"The cases around the country have gone off in different tangents in terms of finding these laws unconstitutional. It’s a bit of a smorgasbord, and that’s why I think ultimately the US Supreme Court is going to have to accept a case and decide this issue once and for all."
It is true that close to 40 courts have issued rulings on the constitutionality of same-sex marriage bans in various states. It is also true that they have "gone off in different tangents." However all but one court has found the bans unconstitutional. The lone court that went off in a tangent different from all the others found a state's ban constitutional has been heavily criticized as being of little merit.
Also on OCT-13, Attorney General Geraghty issued a notice of appeal the case to the 9th U.S. Court of Appeals and asked that the appeal be given an "en banc" review. That is, they asked that it be heard by 11-judge panel. The Circuit Court has 29 judges on staff. 1,4
It is fairly certain what the eventual ruling of the U.S. 9th Court of Appeals would be. They ruled on OCT-07 in the case Latta v. Otter that the Idaho ban on same-sex marriage is unconstitutional and unenforceable. Since the Idaho ban is essentially identical to the Alaska ban, and since the status and predicament of Idaho and Alaska same-sex couples are identical, it is difficult to see how the 9th Circuit Court could find the Alaska ban to be constitutional.
2014-OCT-13: District Court Judge Timothy Burgess denies the state's request for a stay:
Judge Burgess denied the state's request for a stay. Same-sex couples will still be able to purchase marriage licenses. Unless the 9th U.S. Court of Appeals responds very quickly with a stay of their own, large numbers of same-sex couples will be able to marry on Thursday, OCT-16 and perhaps later.
Allison Mendel, who is one of attorneys for the plaintiffs in Hamby v. Parnell said that Judge Burgess:
"... is completely done, it’s in the lap of the 9th circuit now."
Suzanna Caldwell, writing for Alaska Dispatch News, said:
"Mendel said previous actions from the 9th Circuit indicate a stay from the court is unlikely. If a stay is denied at the 9th Circuit level, Alaska could appeal to U.S. Supreme Court Justice Anthony Kennedy, who oversees the jurisdiction. But based on recent actions, where the Supreme Court denied a similar stay for Idaho, she said that too is unlikely to succeed." 4
2014-OCT-15 to 17: Ninth Circuit Court of Appeals issues temporary stay:
Same-sex marriages were halted on the evening of Wednesday, OCT-15. The 9th U.S. Circuit Court of Appeals issued a temporary two-day stay of the District Court's ruling. This give the State of Alaska until 11 AM on Friday, OCT-17 to seek a stay from the U.S. Supreme Court.
2014-OCT-17: U.S. Supreme Court denies request for a stay:
In an impressive display of speed, brevity, and consistency, Justice Anthoy Kennedy denied the State of Alaska's request for a stay of the District Court's ruling. On Friday afternoon, OCT-17, Justice Kennedy issued a one-line reply, at 11:01, one minute after the 9th U.S. Circuit Court of Appeals' stay ended:
"Parnell, Gov. of AK, et al. v. Hamby, Mathew, et al.
The application for stay presented to Justice Kennedy and by him referred to the Court is denied."
Only 17 words, but it means the world of difference to same-sex couples in Alaska who were then able to obtain marriage licenses at their leisure, wait the necessary three days just like any loving, committed opposite-sex couple, and be married. Marriage equality has probably come to Alaska to stay.
By coincidence, OCT-17 is Alaska Day, and state offices were closed. So, couples could not pick up licenses that day.
The state of Alaska is committed to continung the struggle to bring marriage inequality back to Alaska. Sharon Leighow. spokesperson for Governor Parnell (R) issued an email saying:
"In 1998, Alaska voters passed a constitutional amendment defining marriage as being between one man and one woman. When they did that, it became part of the Alaska Constitution, which Gov. Parnell has sworn to uphold. Today’s denial of the stay doesn’t change that and the State will continue with this appeal to the 9th Circuit. The State will comply with the earlier court rulings and resume issuing marriage licenses on Monday. The State will be filing its request for en banc review next week."
Ms. Leighow may not be aware that Governor Parnell's oath of office includes a committment to support both the state Constitution and the U.S. Constitution. Dozens of District Courts have ruled in similar cases since mid-2013 that the due process and/or the equal protection clauses in the 14th Amendment require the State of Alaska to treat people equally. By extension, they must also treat couples equally.
The "en banc review" is a request to have the case reviewed by a larger than normal group of 9th Circuit Court judges. Normally, lawsuits are initially appealed to a three-judge panel selected at random from all the judges in the Circuit Court. Because the 9th Circuit Court is so large, an enbanc review would probably involve 11 judges.
The probability that the larger panel will fail to uphold the District Court's ruling is near zero. The 9th Circuit Court is generally regarded as the most liberal of the 11 Circuit Courts in the country. It appears to be a waste of taxpayer money. However, Election Day is only a couple of weeks away, in early November. With older members of the Republican Party being so intensely opposed to marriage equality, it might be politically expedient for the Governor and his fellow Republicans to resist same-sex marriage even though probability of reimposing the ban is very low.
Reactions to recent judicial developments in Alaska:
Loren Leman, who was once Alaska's lieutenant governor and a state senator, reacted negatively to the decision by District Court Judge Timothy Burgess on OCT-12. Leman said simply:
"It was like a kick in the gut."
Joshua Decker is the executive director of the American Civil Liberties Union of Alaska -- a pro-equality group. He said:
I'm surprised Parnell has not chosen to listen to the wisdom of fellow governors, all of whom may disagree with the court's decision but have said 'the courts have spoken, this is what the law is'."
Arizona, and Nevada are also under the jurisdiction of the 9th Circuit Court. All three states had thrown in the towel and accepted marriage equality earlier in the month in spite of any personal distaste by the states' leaders' for equal rights for the LGBT community.
One of the plaintiffs' attorneys, Caitlin Shortell, said:
"I'm on many levels totally overjoyed that it is really going forward now. Equal marriage can’t be stopped."
Another of the plaintiffs' attorneys, Allison Mendel, was also pleased. She and ther other two attorneys can now make a motion to request to have the plaintiffs' attorney fees paid by the State of Alaska, which has much deeper pockets than the plaintiffs have. She believes that there is "not a lot of hope" that the larger panel of judges will overturn the District Court's ruling, or that the U.S. Supreme Court might eventually impose a ban across the country. She said:
"People are getting married everywhere, which is going to make it hard for them to run the clock backward, no matter what. But right now we’re just happy and relieved and happy." 6
Mendel has history on her side. There have been many instances over the past century and a half when women and minorities have gained equality in the past, and have not had their new rights taken away. Consider the elimination of slavery, women gaining equality with men in marriage, deaf couples being able to marry, women getting the vote, the beginning to the end of racial segregation. None were rolled back, except for recent attempts at black voter suppression in predominately Republican states.
Marriage equality in Alaska appears to be reasonably secure.
We will report any future developments here.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Anne Hillman, "Same-sex couples apply for marriage licenses, state asks for a stay," KYOO, 2014-OCT-14, at: http://www.ktoo.org/
Suzanna Caldwell, "With appeals [sic] pending, Alaska same-sex couples head down path to legal marriage," Alaska Dispatch News, 2014-OCT-13, at: http://www.adn.com/