Monday, November 13, 2006

A Brokeback ruling

The snowbound Capital is waiting for legislators to convene in a special session. The reason is; to deal with the Alaska Supreme Court ruling in the case ACLU vs. State and Municipality.

The case can be read here:

During the debates, I always got a chuckle when Tony Knowles refered to the case in terms of due process. It wasn't. It was a case about equal protection. Two distinct legal arguments which the ex-Governor should have known.

Our duty here is to decide whether the eligibility restrictions satisfy established standards for resolving equal protection challenges to governmental action.

The equal protection clause protects people who are similary situated from being treated differently without a compelling reason for doing so.

In this case, the Court used the Constitutional amendment to justify their decision to depart from a long line of case decisions on the matter. Moreover, the facts of the case are not in line with the truth.

The Alaska Civil Liberties Union and eighteen
individuals who alleged that they comprised nine lesbian or gay
couples (collectively, the plaintiffs) filed suit against the
state and the municipality in 1999, complaining that these
benefits programs violated their right to equal protection under
the Alaska Constitution. They alleged that at least one member
of each same-sex couple was an employee or retiree of the state
or the municipality, that the eighteen individual plaintiffs were
involved in intimate, committed, loving long-term relationships
with same-sex domestic partners, and that, as gay and lesbian
couples, they are excluded by state law from the institution of
marriage. Members of eight of the couples asserted in affidavits
that they are in committed relationships.5 Their amended
complaint alleged that because they are prohibited from marrying
each other by Alaska Constitution article I, section 25, they are
ineligible for the employment benefits the defendants provide to
married couples, resulting in a denial of the individual
plaintiffs right to equal protection.

The Plaintiffs were excluded from marriage by state law, but they were not excluded from marrying.

The two top Plaintiffs:


Anchorage Daily News (Anchorage, AK)
(Dan and Al Carter-Incontro announced, late
September 2003, their legal marriage obtained in
Canada -- the first same-sex wedding notice for
this paper. Another first came in 2001 when
printing the the same couple’s 30-year
anniversary announcement.)

Daily Sitka Sentinel (Sitka, AK)
Juneau Empire (Juneau, AK)
Kodiak Daily Mirror (Kodiak, AK)

The argument should have been; could the benefits be denied to similary situated couples who were legally married? The State of Alaska will recognize heterosexual marriages from out of state as being legal but not between a couple who is of the same sex.

The question on the constitutional issue became one of a federal question in that both parties brought in a U.S. Supreme Court decision.

The plaintiffs appealed. Briefing on their appeal was
completed and oral argument took place before the United States
Supreme Court decided Lawrence v. Texas.7 With our permission,
the parties filed supplemental briefs discussing Lawrence.

Lawerence vs. Texas was wrapped around the sodomy laws and most notable was O' Connor's comments.

Her opinion can be read here:

The Court today overrules Bowers v. Hardwick, 478 U.S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas’ statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. §21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment’s Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment’s Equal Protection Clause.

The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); see also Plyler v. Doe, 457 U.S. 202, 216 (1982). Under our rational basis standard of review, “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973); Romer v. Evans, 517 U.S. 620, 632—633 (1996); Nordlinger v. Hahn, 505 U.S. 1, 11—12 (1992).

Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since “the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. ___; Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955). We have consistently held, however, that some objectives, such as “a bare … desire to harm a politically unpopular group,” are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446—447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to “ ‘discriminate against hippies.’ ” 413 U.S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535—538. In Eisenstadt v. Baird, 405 U.S. 438, 447—455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences–like fraternity houses and apartment buildings–did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that “impos[ed] a broad and undifferentiated disability on a single named group”–specifically, homosexuals. 517 U.S., at 632. The dissent apparently agrees that if these cases have stare decisis effect, Texas’ sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post, at 17—18 (opinion of Scalia, J.).

The statute at issue here makes sodomy a crime only if a person “engages in deviate sexual intercourse with another individual of the same sex.” Tex. Penal Code Ann. §21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by §21.06.

The Alaska Supreme Court stated:

Article I, section 1 of the Alaska Constitution
mandates equal treatment of those similarly situated; it protects
Alaskans right to non-discriminatory treatment more robustly than
does the federal equal protection clause.23 We have long
recognized that [this clause] affords greater protection to
individual rights than the United States Constitutions Fourteenth

Footnote 23: State, Dept of Health & Soc. Servs. v. Planned
Parenthood of Alaska, Inc., 28 P.3d 904, 909 (Alaska 2001)
(footnote omitted) (quoting Alaska Pac. Assurance Co. v. Brown,
687 P.2d 264, 271 (Alaska 1984)).

First, the Alaska Supreme Court has stated that the right to privacy is more robustly protected than in the federal constitution. Not the equal protection clause. And this does not give the Court a reason to break away from federal precedent.

Second, as Justice O'Connor stated, there was a distinction made in the Sodomy laws.

The Alaska Supreme Court has broken from the doctrine that O'Connor spoke of.

In July 2006, the 8th Circuit Court reinstated a ban on same sex marriages. The decision can be read here:

Two key points were made by the Court.

"...Relying primarily on Romer, Appellees argue that § 29 violates the Equal Protection Clause because it raises an insurmountable political barrier to same-sex couples obtaining the many governmental and private sector benefits that are based upon a legally valid marriage relationship. Appellees do not assert a right to marriage or same-sex unions. Rather, they seek "a level playing field, an equal opportunity to convince the people's elected representatives that same-sex relationships deserve legal protection." Citizens for Equal Protection, 368 F. Supp. 2d at 985 n.1."


"...If sexual orientation, like race, were a "suspect classification” for purposes of the Equal Protection Clause, then Appellees' focus on the political burden erected by a constitutional amendment would find support in cases like Reitman v. Mulkey, 387 U.S. 369 (1967), Hunter v. Erickson, 393 U.S. 385 (1969), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982). But the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes. The Court’s general standard is that rational-basis review applies “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 441 (1985). As we will explain, that is the case here, and therefore Appellees are not entitled to strict scrutiny review on this ground."

The Alaska Supreme Court has given special rights to a class of similarly situtated people and has done so based on race and sexual orientation.

Once the State of Alaska puts into place a law that gives same sex couples benefits, heterosexual couples who are not married will be in a position to seek the same.

The fact that a heterosexual couple has a remedy has no bearing. The classification and the discrimination are the criteria for a court challenge.

The Plaintiffs who were married in the case should have been made to test the true meaning behind the amendment.

The Alaska Supreme Court instead, stated that foreign marriages of same sex couples were not recognized by the amendment.

So according to the Justices, the operative portion of the amendment denies any benefits to same sex couples who are legally married Outside and those who are not married. And as such, the Justices on the Alaska Supreme Court ignored the operative effect of the constitution.

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