Alaska News

Amid ever-changing legal landscape, Alaskans go to court to challenge same-sex marriage ban

The oral arguments in Anchorage federal court Friday might have been about whether to uphold Alaska's same-sex marriage ban but supporters feel like they already have their answer.

While there were some tears during oral arguments on whether to uphold or overturn the ban, they were mostly tears of optimism. The oral arguments occurred just days after the 9th U.S. Circuit Court of Appeals, which has jurisdiction over Alaska, found that same-sex marriage bans in Idaho and Nevada were unconstitutional. Advocates of marriage equality have said the decision holds precedent over district court judges, who are beholden to the higher court's rulings.

The Friday arguments in Hamby v. Parnell were set to convince U.S. District Court Judge Timothy Burgess to either uphold or overturn Alaska's own constitutional amendment defining marriage as between one man and one woman.

Five plaintiff couples filed suit in May arguing the law infringes on their constitutional rights to equal protection and due process. Plaintiffs' attorneys -- Caitlin Shortell, Allison Mendel and Heather Gardner -- asked for summary judgment, or no jury trial, in the case.

In an order earlier this week, Burgess asked parties to be willing to address the 9th Circuit Court's decision. Before hearing from attorneys, he noted the fast-moving legal precedents.

"Are you anticipating the landscape is going to change while we're speaking?" Burgess asked attorneys at the beginning of the arguments, eliciting a laugh from the audience. "I'm not sure any of us would be surprised."

Coincidence or not, things did change during the hour of arguments. Plaintiffs' attorneys argued that the 9th Circuit Court's decision wholly applies in the Hamby case and it should stand as controlling authority on the court.

Assistant attorney general Bill Milks, representing the state, conceded that the 9th Circuit case left the state of Alaska in an "awkward position" and that the decision does appear to hold precedent on the court. But with stays being appealed at the U.S. Supreme Court level, he urged Burgess to wait until a more final ruling is issued.

"(The 9th Circuit ruling) appears to be controlling but not final," Milks told the judge. "We're in a very odd situation."

With only minutes left in the hearing, as Milks reiterated his points about the 9th Circuit ruling being less than final, he asked Burgess to consider a stay if he rules in favor of overturning the ban. Milks noted that Idaho had requested a similar order from the U.S. Supreme Court and said a stay would give the state time to develop a "measured, orderly process" for issuing marriage licenses.

Just then, plaintiffs' attorney Mendel piped up, laptop in hand, with a legal order in view. Minutes earlier, the U.S. Supreme Court had denied the Idaho request for a stay, reiterating the 9th Circuit ruling on the matter and canceling out Milks' argument on the finality of the ruling.

"No one gets to do that," said Gardner, who had been checking for the ruling during the arguments. "No one ever does that."

Gardner said afterward that she understood the challenges in presenting the case. She and other attorneys had to constantly amend their arguments as they prepared to file the original motion. With new rulings on the matter coming out frequently in a number of states, it became a challenge to keep up.

"If you're in (the state's) position, it's not a positive change for your case," Gardner said of the Supreme Court ruling. "But it shows that it continues to evolve until the last two minutes of the hearing."

Milks declined to comment after the hearing and referred additional questions to the Alaska Department of Law.

Gardner said she felt for the state having to argue against the amendment, calling it a "horrible case to have to argue from that position."

"No one goes to law school and goes into public service to argue that other people shouldn't have rights," she said. "It's not a comfortable argument to make, and I think they did what they could."

It's unclear when Burgess will issue his ruling. In his closing statement, the judge simply said it would be "soon."

Packed courtroom, broad support

Alaskans spilled into two federal courtrooms in Anchorage and onto nearby streets to rally in support of the plaintiffs' cause. Other courtrooms were also open in Juneau and Fairbanks for citizens to listen to the hearings. At one point, the Anchorage clerk had to ask the Juneau courtroom to mute its microphone, as laughing could be heard in the background.

In Anchorage, the main courtroom for the hearing was packed, with extra chairs set at the end of each set of benches. With no jury, spectators packed the seats usually assigned to jurors.

The mood was light and enthusiastic. Many showed up in support of the 10 plaintiffs, while others came simply to show their support for overturning the ban. Couples held hands or draped their arms around each other during arguments. Some sported rainbow scarves, flags, sweaters and signs in support of marriage equality.

Lin Davis and Maureen Longworth both flew in from Juneau to watch the proceedings. They booked their tickets as soon as they knew when arguments would occur.

Davis and Longworth have both been fighting for LGBT rights since the 1970s, starting in the San Francisco Bay Area. The two met in 1988 and married in 1990.

"It was totally illegal," Davis said.

The two moved to Juneau in 1993 and in 2008 were married again -- legally -- in California.

After marrying a second time, Davis said, the two remained in the "floating group" waiting for decisions on whether their California marriage would remain legal. The two women were part of the Alaska ACLU suit in 2005 that ruled the state must extend employee benefits to the same-sex partners. But both noted that despite that court case, they still have barriers to overcome when it comes to benefits. They've had to draft multiple wills and legal documents to make sure both are covered under the law, a step married couples wouldn't have to take.

Davis and Longworth expressed frustration about how they're seen as little more than "legal strangers" in the eyes of the law.

"I hate that term, but it applies to me and Lin," Longworth said.

But now Davis has become more and more "smitten" with news they've been hearing from across the country. More states are getting full marriage equality, and that leaves Davis feeling emotional.

"I've been crying almost every day," she said outside the Anchorage courtroom Friday, wearing her rainbow Juneau Pride 2014 T-shirt, tears welling in her eyes.

"It feels like your cells are filled with more goodness with these rulings," Davis said.

Outside the courthouse, Wendy Rainey and her "save-the-world daughter," Waverli, held signs that read "Christians for Equality" and "1 Cor 13:4-1," referring to the Bible verse that begins "Love is patient, love is kind."

Waverli said that, as she is a 22-year-old student at the University of Alaska Anchorage with a girlfriend, the fight for marriage equality "is very personal for me."

Her mother said Waverli was raised in the Presbyterian Church, and Rainey argued that the Bible does not contain any message against same-sex marriage.

"Jesus said nothing about this," Rainey said. "Nothing."

Plaintiffs: A ‘historic moment’

Four of the five plaintiffs were in attendance. Plaintiffs Susan Tow and her wife, Chris Laborde, said they were excited by the developments.

"I think it's just a great day," Tow said.

Chris Shelden and his husband, Matt Hamby, expressed their elation. Hamby said he was proud "to be part of this historic moment." Shelden added that it was a day he never thought would come.

Josh Hemsath, regional development organizer with the Pride Foundation, said more that needs to be done in terms of securing full equality for LGBT Alaskans, especially protections against discrimination.

Still, he was thankful for the suit and was looking forward.

"We were one of the first states to ban marriage equality," he said. "We won't be the last state to receive a judgment."

Tegan Hanlon contributed to this report.

Suzanna Caldwell

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

Sponsored