Alaska News

Appeals court ruling could doom Alaska's same-sex marriage ban

A ruling from the 9th U.S. Circuit Court of Appeals struck down same-sex marriage bans in Nevada and Idaho Tuesday, a decision that could quickly overturn a similar ban in Alaska.

"There's no meaningful difference on the bans decided by the 9th Circuit and the one in Alaska," said Peter Renn, staff attorney for LAMBDA Legal, an LGBT legal association that has closely followed the 9th Circuit Court cases.

"When the constitutionality of the (Alaska) ban is tested in court, it's dead on arrival," he said.

The opinion, issued by a three-member panel of judges based in San Francisco, found that same-sex marriage bans undermine equal protection and due process rights afforded to individuals under the U.S. Constitution. The ruling comes a day after the U.S. Supreme Court decided not to hear appeals in several other states, thereby allowing same-sex marriage bans in those states to remain overturned.

"The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions," Judge Stephen Reinhardt wrote. "When we integrated our schools, education improved. When we opened our juries to women, our democracy became more vital. When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion. When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all."

The 9th Circuit Court oversees nine Western states, including Alaska. Alaska was one of the first states to explicitly ban same-sex marriage, with voters approving a constitutional amendment in 1998 that defined marriage as only between one man and one woman.

The Alaska Department of Law was meeting Tuesday afternoon to review the opinion, according to department spokesperson Cori Mills, but would not have further comment until Wednesday at the earliest.


ACLU of Alaska Executive Director Joshua Decker said the state has the power to immediately recognize that Alaska's ban is unconstitutional. The state could, in theory, direct clerks to begin issuing marriage licenses and recognizing marriages conducted in other states right away.

Or the state could continue to defend the Alaska constitution. Meanwhile, oral arguments in Hamby v. Parnell, a direct challenge to Alaska's same-sex marriage ban, are set for Friday afternoon.

Renn noted the state could choose not to defend the suit and thereby let the 9th Circuit decision stand. If it does defend it, it is likely that U.S. District Court Judge Timothy Burgess will issue a ruling favoring the plaintiffs.

"The bosses of this judge have spoken," Renn said. "There is no flexibility for a district court judge."

Caitlin Shortell, one of three attorneys representing five couples who brought the Hamby suit, said that with Tuesday's ruling, she sees no obstacles in the way of winning their lawsuit.

"We expect that we will prevail in our motion," she said. "It looks like people will be getting married soon."

The 90-page ruling from the circuit court, written by Reinhardt and followed by two concurring opinions from fellow judges, refutes the arguments used by the defendants in the Nevada and Idaho cases, including that allowing same-sex marriage will seriously damage the institution of marriage. Many of those assertions -- including that fewer people will get married if same-sex marriage is legalized or that marriage is designed solely to produce children -- were rejected due to lack of evidence.

The court also rejected the argument that voters, not the courts, should decide marriage issues, a point argued by the Alaska Department of Law in its effort to uphold the state's marriage ban. The 9th Circuit Court points to the United States v. Windsor -- the U.S. Supreme Court case that last year overturned portions of the Defense of Marriage Act and has served as a watershed in overturning numerous voter-approved same-sex marriage bans across the country -- as justification for its decision.

"A primary purpose of the Constitution is to protect minorities from oppression by majorities," Reinhardt wrote. "As Windsor itself made clear, 'state laws defining and regulating marriage, of course, must respect the constitutional rights of persons.' Thus, considerations of federalism cannot carry the day for defendants. They must instead rely on the substantive arguments that we find lacking herein."

Suzanna Caldwell

Suzanna Caldwell is a former reporter for Alaska Dispatch News and Alaska Dispatch. She left the ADN in 2017.