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With appeals pending, Alaska same-sex couples head down path to legal marriage

  • Author: Suzanna Caldwell
  • Updated: September 28, 2016
  • Published October 13, 2014

A whirlwind week of court rulings and appeals in same-sex marriage cases across the country continued Monday in Alaska.

The state began accepting marriage license applications in the morning -- and two Barrow couples were apparently wed in the afternoon -- a day after U.S. District Court Judge Timothy Burgess overturned Alaska's constitutional amendment banning same-sex marriage.

Four couples were lined up outside when the Anchorage Bureau of Vital Statistics office opened at 8 a.m. Monday.

Stephanie Pearson and Courtney Lamb, two of the 10 plaintiffs in Hamby v. Parnell, the case directly challenging Alaska's marriage ban, were the first to arrive.

"This is the longest 20 minutes of my life," Lamb told Pearson as they waited, their marriage license application already filled out and IDs ready. The couple even brought a copy of Burgess' ruling "just in case," Lamb said.

The "just in case" was unnecessary as clerks quickly began processing their forms once the office opened. While Lamb and Pearson had to cross out "groom" on the form they had printed online Friday in anticipation of the day, marriage applications had been updated by Monday to say "Party A" and "Party B."

According to Alaska Department of Health and Social Services spokesman Jason Grenn, 23 marriage applications had been processed as of 3 p.m. Monday by the Bureau of Vital Statistics. Of those, 15 were for same-sex couples. On average, the bureau, which DHSS oversees, processes about 17 applications per day.

Grenn said the number did not include applications filed in local state courts, which is where couples outside of Anchorage, Fairbanks and Juneau would apply.

Marriages begin

It appears two same-sex marriages were expedited. Kristine Hilderbrand, 30, and Sarah Ellis, 34, said they were married in Barrow at 4 p.m. Monday.

Speaking via phone from the Arctic coastal community of about 4,600, Hilderbrand said she and Ellis went to the Barrow courthouse at 8:30 a.m. Monday expecting to just apply for a license. When they got there they were told the judge was willing to waive the three-day waiting period and marry them that afternoon.

The two accepted, hurrying home to notify friends and family members, and 50 to 70 people joined them in the courtroom for the ceremony officiated by Magistrate Mary Treiber.

"It's a little surreal," Hilderbrand said. "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."

Kelly Cahoon, 28, and Bernice Oyagak, 27, were the second Barrow couple to marry. The two were leaving for an Anchorage trip Monday night and didn't want to wait until they got back to Barrow to get married. Not wanting to marry in Anchorage, the two petitioned Treiber, who approved an expedited marriage.

They had originally planned to get married in Hawaii in December. That ceremony is still happening, they said, but they didn't want to wait any longer to wed.

"We've been together six years," said Cahoon. "It's safe to say we've been waiting for a long time to get married in our home state. We couldn't pass up this opportunity."

Anchorage couples apply for licenses

Lamb and Pearson, first in line in Anchorage for a license, have been together almost two years and were engaged in May. Despite opportunities to marry in other states, they wanted to marry at home, a primary motivation for challenging the law.

"We felt that we live in this state so we shouldn't have to go somewhere else, especially since it wouldn't have been recognized here," Lamb said after applying for the license. "We wanted to make way for it to happen here."

Lamb and Pearson were not alone in that decision.

Ann Marie Garber and Koy Field were second in line to file their application. They stood in line with cups of coffee and a red and yellow rose Garber had purchased at the Holiday gas station en route.

The two have been dating since April 2013 and got engaged -- twice, each woman proposing at different times -- this summer.

"What rules say you have to have one proposal?" Field joked.

The couple considered marrying in Santa Fe, New Mexico, but with the Alaska challenge pending in court, they decided to hold off.

"I felt it coming," Field said. "It feels like times are changing."

The two have "no plans to force it or rush" the wedding Garber said, with a date scheduled for the winter solstice.

Still, they wanted to get in on the first day of license applications being accepted.

"Alaska may be the 49th state, but it won't be the 50th to allow marriage," Garber said.

Asked if they had any reaction to Sunday's ruling, Jacob and Eugene Dugan-Brause, who brought the original challenge to Alaska's marriage law in 1995, had a short response.

"Too much for words, really," the couple, who now live in London, wrote in an email.

Advocates say legal challenges unlikely to succeed

As couples filed through the office of Vital Statistics Monday, the Alaska Department of Law worked to file a challenge to Judge Burgess' decision.

Monday afternoon, the state filed an emergency order for a stay on same-sex marriages pending an appeal to the 9th U.S. Circuit Court of Appeals. The state argued there was a "reasonable likelihood" the 9th Circuit would re-hear Latta v. Otter, the case overturning Idaho and Nevada's same-sex marriage bans. Idaho had indicated it plans to petition the court to have an "en banc" review of the case, in which a larger panel of 11 judges considers the ruling instead of a three-judge panel.

The state of Alaska also argued in its request that another circuit could also uphold a marriage ban in the "very near future," which would require U.S. Supreme Court review.

"The law on which the district court grounded its opinion could continue to be in rapid flux over the next several months," said the filing co-written by assistant attorneys general Bill Milks and Kevin Wakley. "And thus the Court should stay its decision to avoid chaos in the administration of Alaska's marriage laws pending ultimate resolution of this fundamental issue."

Allison Mendel, one of three attorneys who argued on behalf of the plaintiffs, doesn't think Alaska's appeal will have much standing. She said "en banc" review is difficult to get -- it requires a majority of 29 judges in the circuit to agree to even hear the case -- and from there it would be unlikely the judges would overturn the ruling, given that the Supreme Court already denied Idaho's stay on the case.

Mendel didn't think the state had any other basis for a challenge.

"After the whole dance last week with (the Idaho and Nevada cases), I just think there's no point in it," she said.

What the ruling means

ACLU of Alaska executive director Joshua Decker said that with marriage now legal in Alaska, same-sex couples are afforded "hundreds" of rights.

Most of Alaska's LGBT court victories prior to Sunday's ruling were incremental, involving things like death benefits, tax breaks and state employee benefits for same-sex partners. Now private employers must offer the same benefits to same-sex couples that they would to opposite-sex couples. Adoptions for stepchildren will also be easier, he said. The ability to make medical decisions and visit spouses in a hospital will no longer be in question. Gone are the days of drafting complicated wills, Decker said.

"If you pass away without a will your spouse is treated like your spouse," Decker said. "Before they were treated as a legal stranger."

Mendel noted that despite the Supreme Court decision last summer that struck down portions of the Defense of Marriage Act, federal benefits haven't been universal. In particular, issues related to Social Security and veterans benefits have laws that are dependent on state marriage statutes.

"Now if you're living here and married, you get everything everyone else gets," she said.

Despite the jubilation, some in the Alaska LGBT community expressed concerns. Drew Phoenix, executive director of Identity Inc., an Anchorage-based nonprofit that advocates for LGBT issues, said same-sex couples still don't have non-discrimination protections. He worried that for some couples, getting married would "out them" and potentially set them up for discrimination in housing, workforce and loans.

"Hopefully (getting married is) just a matter of getting the paperwork together, but I'm also concerned about the backlash," Phoenix said. "This is very complicated."

How to go forward in securing more non-discrimination policies -- at the statewide and local level -- has been an ongoing conversation, according to Phoenix. He said voter rejection of Anchorage's non-discrimination ordinance in 2012 was a "defeat in some ways for the community, but also empowering.

"It brought people together," he said.

While he doesn't see any current political will to update those protections, he's optimistic "that will change in the next few elections." In the meantime, Identity and other LGBT organizations are working with the Anchorage Chamber of Commerce and Anchorage Economic Development Corp. to complete an LGBT-friendly business survey. The hope is to get businesses bringing on LGBT employees and showing the positive effect employing them has on the economy. Phoenix hopes with the business community on board, politicians will follow.

Joanie Fogel and Jo Fisher applied for their marriage license Monday after 13 years together. Fogel said the two had faced discrimination already in housing and are frustrated that some people don't believe discrimination exists.

Neither believed they would be able to get married in their lifetime. Both thanked the 10 plaintiffs of the Hamby case, with Fisher adding that she would have signed up too if she had known they were looking for couples.

"It took a lot of courage," Fogel said, "and I'm thankful."

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