Alaska Marriage Equality Has Day in Court

Courtroom 1 at the Alaska District courthouse was full to overflowing. Courtroom 2 held those who couldn’t find a seat. The fates (and a friend) ushered my daughter and I to seats right in the jury box, which was a wonderful surprise. A TV monitor to my left showed a distant room which I knew to be in Fairbanks, because there was Gary Black from the Newsminer! Juneau was with us also, and had to be asked to mute their sound because of laughing and merriment. The mood was optimistic, but cautious. Alaska’s LGBT community has had victories within their grasp, and last-minute defeats and vetoes so often now that this nervousness is understandable.

Allison Mendel and Caitlin Shortell would be arguing the case on behalf of the litigants, five same-sex couples who are suing the state (Hamby v. Parnell), over marriage equality. Four of the couples have already been married in other states, and are suing to have Alaska recognize these marriages, and one couple is suing for the right to marry. The lawsuit alleges that Alaska’s current ban on same-sex marriages violates constitutionally given rights to due process, and to equal protection under the United States Constitution.

Alaska was the first state that voted to ban same-sex marriages by amending the state Constitution in 1998. Since that time, opinion has shifted among Alaskans with a majority now, according to polling, favoring the right of Alaskans to marry whom they choose. And while Governor Parnell clearly believes in discrimination, both Democratic Senator Mark Begich, and Republican Senator Lisa Murkowski have voiced their support for same-sex marriage in the state.

The defendants (Gov. Sean Parnell et al.) represented by Assistant Attorney General William Milks said that there had not been any denial of the plaintiffs’ constitutional rights.

Each side was given 30 minutes to state their legal case to U.S. District Court Judge Timothy Burgess, who would then make a ruling based upon earlier court filings, and the oral arguments today. These 30 minutes could be divided between the presentation and rebuttal in whatever way they saw fit.

There was no question that “the legal landscape had changed dramatically over the past week,” said Allison Mendel. The U.S. Supreme Court on Monday stated that it wouldn’t take up appeals from five other states which were attempting to keep marriage bans in place. Then on Tuesday, the 9^th Circuit Court of Appeals followed with a ruling that the ban on same-sex marriage in Idaho and Nevada were unconstitutional. Alaska is also overseen by the 9^th circuit, so rulings in these cases also affect legal precedent here.

Then on Wednesday, Idaho had asked for and received a stay on the ruling, granted by Supreme Court Justice Anthony Kennedy, acting as Circuit Court Justice. The case, Otter v. Latta, would be referred to many times today.

“So, is this ‘legal landscape’ going to change before we finish today?” Judge Burgess asked, followed by laughter from the crowd.

“It might. You never know,” said Mendel.

Allison Mendel addressed the court first, enumerating the many obstacles gay couples face when trying to ensure for themselves the same legal rights as straight couples, including scads of complicated legal documents to ensure rights of hospital visitation, intestate succession, and “a whole panoply of rights that married people take for granted,” she said.

As always, cameras are forbidden in Federal Court, so I give you another eerily lifelike courtroom sketch – Allison Mendel is speaking.

One of these rights, which people don’t often think of, is the right to get a divorce. In Alaska, because of the wording in the constitutional amendment, same-sex married couples cannot get a divorce. And they can’t simply go to another state to do it because they aren’t residents of that state. So this situation puts an undue burden on couples wishing to end their marriage, forcing them to actually move out of state, and establish residency elsewhere to get a divorce.

In addition, because of the constitutional amendment, when same-sex couples are seeking to receive allowable state benefits, marriage doesn’t count in proving you are in a domestic partnership. There has to be “other proof” to show you are a couple, because your marriage, although legal elsewhere, isn’t “real” according to the state.

“These plaintiffs have demonstrated they are suffering, and hundreds of others are too,” Mendel concluded, before passing the podium to Caitlin Shortell.

Shortell said that the fundamental right to marriage is a liberty, and a privacy right of all people and not to be intruded upon by government, which should stay out of this private relationship.

“In Alaska, the right to marry the person of your choosing is a right that belongs to all persons, that has ben infringed upon by the state,” she said. “Voters can enact laws, but those laws can be subjected to constitutional challenge.”

Assistant Attorney General William Milks was next, representing the state. He started off by saying that this was an important case to all Alaskans, and a difficult case.

“It is certainly important to the plaintiffs,” he said. “They believe the law should change, and we understand that. But Alaska has a constitution. The law that’s being challenged was a direct vote by the people of Alaska, as well as its representatives when they passed state statute. This case is important and interesting and confusing because it is coming in such a whirlwind of activity.

“…This is a law that was democratically passed by voters and legislators. If this argument was a week ago, we were all set to argue points as well as we could… But (Otter vs.) Latta is a 9^th Circuit Court decision, which appears to be controlling, but not final. We’re in an odd situation. We looked at our case and looked at our argument, and the 9^th Circuit appears to have addressed them, and the results seem to be dispositive.”

In other words, the 9^th Circuit ruling has already addressed all the State of Alaska’s arguments and ruled against them. BUT, that pesky stay from Justice Kennedy was still in effect, and even though it was pretty clear that the outcome would uphold the decision in Otter vs. Latta… you just never know.

“Do you believe at this point with the ever shifting ground that Latta applies?” asked Burgess.

“We think Latta is precedential for this court. However, as much as advocates we would want to say, ‘Don’t pay attention to Latta,’ we can’t do that. We’re in a very unusual situation. Two things are clear: 1) Things are not clear but 2) We know Latta is stayed… So Idaho is pursuing a case. So we have a case that’s ongoing.

“I could argue some points pre-Latta decision…” he offered, dejectedly, knowing that those arguments had already been presented and struck down by a higher court.

“Who defines marriage? Is it the people in a vote, or is it a fundamental right and therefore decided by the judicial branch? We don’t believe there’s a fundamental right to same-sex marriage… There is a constitutional right to marry, but the definition of marriage was always a man and a woman… So, we’re talking about the creation of another fundamental right. The Supreme Court has been extremely careful about giving fundamental rights because as soon as you do, then it’s essentially off-limits and people can’t affect it.”

“We’re in a situation where we are not disputing that Latta is precedential,” he conceded, but went on to reiterate that things were in flux, and there was still a stay in place and therefore it was not the final word. “We have uncertainty,” he said. “In that circumstance, that’s pretty much how we see this.”

With ten minutes remaining for the plaintiffs, Allison Mendel spoke again.

“The plaintiffs are entitled to decision. The fact that it could change could be applied to any recently decided case. The defendants have all the same remedies Idaho has. Waiting to see what people get somewhere else is not the answer. You can’t put a case on hold for months or years to wait to see how some other case is decided.”

Caitlin Shortell used the remainder of the time to rebut.

“This emphasis on direct democracy, and the will of voters is something we cited in a case involving another law which was democratically enacted (Zobel)…, and which found that being democratically enacted by voters doesn’t save a law if it is itself unconstitutional.

“In response to the statement that we are asking for a ‘new right,’ the question is not whether there is a fundamental right to gay marriage, but a constitutional right to marry. The ‘traditional’ aspect does not save this. There was also a long history of banning interracial marriage, but that didn’t mean it was constitutional.”

The defense spoke again about the need to be measured, and have an “orderly follow through” to avoid chaos once a decision came down. The defense didn’t seem to have its heart in the proceedings. They had a job to do, but they knew, that we knew, that they knew, that this was not looking good for them.

Just then Caitlin Shortell’s face lit up, and she showed her computer screen to Allison Mendel who was sitting to her right. Just at that very moment while we were listening to all the back and forth arguments, Justice Kennedy had removed the stay in the Idaho case of Otter vs. Latta. Just like that. A whole new ballgame. What was conceded by the state to be the last little stumbling block had, in essence, vanished in a puff of smoke with one refreshed screen of the SCOTUS blog.

Again, the defense made an attempt to say that we really didn’t know why this had happened, so it was still unsure.

Mkay.

“Well, I will take a look,” said the Judge. “It is a complex and fast-moving area of the law. I will issue a decision soon. You’ll hear from me soon.”

And with that, we all rose, and court was adjourned.

It seemed pretty clear to everyone there, that it was only a matter of time, and not much time, until Alaskans – ALL Alaskans – would be able to exercise their constitutional right to marry. Good riddance to bad law.

(Photos ARE allowed outside the courthouse, where attendees congregated after court adjourned)

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