Alaska News

State files opposition argument to same-sex marriage challenge

Voters, not the courts, are the ultimate arbiters when it comes to determining whether same-sex marriage should be allowed in Alaska, according to the state Department of Law.

The state filed its opposition Friday in Hamby v. Parnell, a suit challenging Alaska's constitutional amendment banning same-sex marriage.

"The question of whether to define marriage to include the right to marry someone of the same sex is an important question of public policy," the filing states. "But it is a decision for the citizenry to make through the democratic process, not the judiciary."

In its 36-page filing, co-written by assistant attorneys general William Milks and Kevin Wakley, the state argues that numerous courts have traditionally defined marriage as being between one man and one woman. It notes that even the U.S. Supreme Court "has never held that there is a federal constitutional right to same-sex marriage but the plaintiffs argue that such a right exists." The filing notes that United States v. Windsor, the Supreme Court case that struck down multiple provisions of the Defense of Marriage Act in 2013, did not issue a broader ruling on the constitutionality of same-sex marriage.

The filing goes on to state that Alaska does not dispute that residents don't have the right to challenge marriage, but that it belongs to the citizens to determine -- or maintain -- public policy:

"Where the citizens have exercised their rights through the right to vote -- their decision should not be overturned by the judiciary absent compelling circumstances such as a violation of a fundamental constitutional right."

In May, five couples filed suit in Alaska District Court challenging Alaska's same-sex marriage ban, arguing that it violates their due process and equal protection rights afforded under the U.S. Constitution.


The state argues that the ban does not infringe on those rights. It argues that the 14th Amendment to the Constitution does not deal specifically with the issue of same-sex marriage for numerous reasons, including historical precedents and federal court cases.

The filing also notes that the ballot measure itself, passed by voters in 1998, "did not state that same-sex couples would be denied any benefits" and ?that the statement of support for the measure in the official election pamphlet said that the amendment "does not 'target' anybody or 'deny' anybody their rights."

"All Alaskans are equal before the law," the election pamphlet statement continued. "But that's not what this debate is about."

But since the Supreme Court ruled on the Windsor case, same-sex marriage bans across the U.S. have slowly crumbled, all challenged on the grounds of unequal protection and due process infringement. In that time, more than a dozen states have overturned bans or passed legislation legalizing same-sex marriage. It even appears the Supreme Court will take on the issue this year, with at least three cases pending at the federal level.

American Civil Liberties Union of Alaska Executive Director Joshua Decker said the arguments outlined by the state Friday are close to arguments that have been rejected outright by numerous courts across the country since the Windsor decision. The ACLU of Alaska filed a joint friend-of-the-court brief with the NAACP, Anchorage Branch last month supporting the same-sex marriage challenge.

"The point and benefit of a constitutional democracy like the U.S. and Alaska is that we have a constitution that protects fundamental rights that cannot be erased simply based on the political whims of the moment," Decker said.

Decker also criticized the state's claims that the challenge was just about marriage and not equal rights. Decker noted that during the Alaska v. Schmidt trial the state used the same-sex marriage ban to defend its reasoning that it did not have to extend equal property tax benefits to same-sex couples.

"I think its disingenuous or at least inconsistent for a year ago for the state to say the marriage amendment can mean it can deny rights to people, but now they can say 'this is just a name,'" Decker said.

Numerous Alaska Supreme Court decisions have upheld equal protection and due process rights for Alaskans when it comes to same-sex benefits, including shared state employee benefits, tax exemptions and death benefits. Those decisions, however, are narrow in their rulings and do not deal directly with the issue of same-sex marriage.

Attorney Caitlin Shortell declined to comment on the filing Friday. Shortell and fellow plaintiffs' attorneys Allison Mendel and Heather Gardner have until Oct. 3 to file a reply to the motion. Hearings in the case are set for Oct. 10.

Suzanna Caldwell

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