Alaska Enters Marriage Fray

In a 13-page "Memorandum and Order" issued Feb. 27, Judge Peter Michalski of the Superior Court for the State of Alaska in Anchorage said that "the recognition of one's choice of a life partner" is a fundamental right. And because it is a fundamental right, he noted, the "state must...have a compelling interest that supports its decision to refuse to recognize the exercise of this fundamental right by those who choose same-sex partners rather than opposite-sex partners."

Michalski made his ruling after studying briefs filed by both sides in a lawsuit brought by a Gay male couple -Jay Brause and Gene Dugan. Brause and Dugan filed an application for a marriage license in August 1994. But, referring to a previous judge's ruling that "marriage between two persons of the same sex is not contemplated by [Alaska's] statutory" law, the state's Office of Vital Statistics rejected the application.

Brause and Dugan filed a lawsuit, charging that the refusal to issue them a marriage license violated the state constitution's guarantee that every citizen shall have a right to equal protection and privacy.

Michalski agreed on both counts. In doing so, he noted that Brause and Dugan are challenging "the very definition of marriage" in state law. Alaska's law defines marriage as "a civil contract entered into by one man and one woman that requires both a license and a solemnization." He also noted that, like 25 other states, Alaska recently passed a law to stipulate that "specifically prohibits same-sex marriage."

But the fact that the law defines marriage that way and that most people define marriage that way, said Michalski, does not justify the limitation of marriage to such unions.

"In some parts of our nation," he wrote, "mere acceptance of the familiar would have left segregation in place."

Citing a 1972 Alaska Supreme Court case which upheld the right of a male student in public school to wear his hair long, Michalski concluded that, even though "how one looks is a very public fact, the decision about one's personal appearance is personal, and therefore protected by the right to privacy."

"Clearly, the right to choose one's life partner is quintessentially the kind of decision which our culture recognizes as personal and important," said Michalski. "...Certainly, the choice of a life partner is as important and personal as the choices involved in determining one's personal appearance."

"The relevant question," he wrote, "is not whether same-sex marriage is so rooted in our traditions that it is a fundamental right, but whether the freedom to choose one's own life partner is so rooted in our traditions."

"Here the court finds that the choice of a life partner is personal, intimate, and subject to the protection of the right to privacy. Failure of the state to provide public recognition of that private choice, whether it is the choice of a life partner of the opposite sex or of the same sex, is analogous to the unwillingness of the school...to allow the presence of a student who made a personal choice to wear long hair."

Concerning the Gay couple's claim that the rejection of their marriage license application also violated the state constitutional guarantee to equal protection, Michalski agreed. While the U.S. Supreme Court's previous decisions declaring the right to marry as a fundamental right involved cases which implicated such "traditional family" issues as procreation, noted Michalski, "so too should the decision to choose one's life partner and have a recognized nontraditional family be constitutionally protected."

Because Alaska's marriage laws infringed on fundamental rights of the Gay couple, said Michalski, the laws must be scrutinized under the strictest legal standard. Thus, the state must demonstrate a compelling reason for treating same-sex couples differently from heterosexual couples and he ordered that a trial date be set to give Alaska officials an opportunity to show a compelling state interest.

That ruling puts the Alaska marriage lawsuit where the Hawaii marriage lawsuit was almost two years ago. A Hawaii district court judge then ruled, in 1996, that the state failed, during a two-week-long trial, to demonstrate that it had a legitimate compelling reason to deny same-sex couples marriage licenses. The ruling in that case is now before the Hawaii Supreme Court where many believe it will be upheld.

A same-sex marriage challenge in the Vermont state court system is also before the state supreme court, though there is no explicit bar on recognition of same-sex marriage in that state. Oral arguments in that case, which was dismissed at the district court level, are expected to take place sometime this year. Briefs in the case are due today.

Mary Bonauto, an attorney with Gay & Lesbian Advocates & Defenders which is helping with the Vermont challenge, said officials in Vermont and Alaska are likely to make an argument similar to one proffered by Hawaii -that denying marriage licenses to same-sex couples has some benefit towards ensuring procreation.

The Alaska Attorney General's office indicated last week that it will probably appeal Michalski's ruling to the Alaska Supreme Court before attempting to show that the state has a compelling interest to deny same-sex couples marriage licenses.