Alaska couples await Supreme Court decision on DOMA, Prop 8

Aimee Olejasz and Fabienne Peter-Contesse at Denali Park in 2011.

Aimee Olejasz and Fabienne Peter-Contesse have been together for 23 years and have spent most of their life in Alaska. This fall, they’re headed to Washington to say their vows. (Photo courtesy Fabienne Peter-Contesse and Aimee Olejasz)

Update: The Supreme Court did not issue rulings in either the DOMA (United States v. Windsor) or Prop 8 (Hollingsworth v. Perry) cases on Thursday. The only remaining scheduled day for opinions is Monday, or the court may add an additional day.

The U.S. Supreme Court could rule as soon as Thursday on two same-sex marriage cases: The Defense of Marriage Act, and California’s Proposition 8, which recognizes  marriage only between a man and woman in that state.

For same-sex couples in Alaska who want to marry, the only option right now is to head out of state.


Alaska was the first state to ban gay marriage through a constitutional amendment in 1998. By statute same sex marriages from other states are not recognized.

In 2005, the Alaska Civil Liberties Union sued the state and Municipality of Anchorage on behalf of nine gay and lesbian couples who were seeking benefits for their spouses.

The Alaska Supreme Court said denying spousal benefits for gay couples was an equal protection violation. The result was that local governments as well as the state had to make employment benefits available to people in domestic partnerships.

Fabienne Peter-Contesse and her soon-to-be wife Aimee Olejasz were plaintiffs in the case. Both Peter-Contesse and Olejasz work for state agencies.

When the Alaska Supreme Court ruled in favor of the ACLU, Peter-Contesse describes it as a feeling of relief.

“It feels a little bit that way with DOMA, with the Defense of Marriage Act now. It’s just the right thing to do,” she says.

According to DOMA, marriage is between one man and one woman. DOMA’s definition prevents married same-sex couples from receiving any federal marriage benefits.

“If the Supreme Court decides that to strike down the Defense of Marriage Act and allow same sex partners to receive all the same protections and responsibilities and rights that heterosexual couples have, it will be on one hand a huge celebration and on the other hand it’s like ‘yeah, about time,’ ” Peter-Contesse says.

Peter-Contesse and Olejasz are planning a fall wedding in Washington state. Washington legalized gay marriage last year. When they heard the news they were elated, and that’s when they knew they would get married in Washington where Peter-Contesse has family.

They wanted to get married in Alaska, but Olejasz says they didn’t know how long they would have to wait for that to be possible.

“Until perhaps there’s a shift in the culture here in Alaska, I think that will be slow in coming,” she says.

University of Alaska Anchorage Justice Center Professor Jason Brandeis also thinks Alaska isn’t there yet:

“I just don’t see that happening anytime soon. But if there was a United States Supreme Court decision that required the state to change its laws then that would be a whole different story.”

The cases before the Supreme Court cover two main issues.

United States versus Windsor asks if the Defense of Marriage Act violates the right of equal protection under the law. In this case Edith Windsor sued the federal government over inheritance taxes she had to pay when her wife passed away. A married heterosexual person does not have to pay the tax when their spouse dies. (Here’s a link to the full transcript of the arguments heard in the case)

Possible rulings in the United States versus Windsor case

Justice Center Jason Brandeis believes there are three likely outcomes in the U.S. v.  Windsor case:

1. The Supreme Court could rule that in defining marriage as being a union between a man and a woman, the Defense of Marriage Act is unconstitutional; therefore same-sex couples who married in states that recognize same-sex marriage, would be entitled to the benefits available to heterosexual couples under federal law.
2. The court could rule the law is constitutional and the U.S. government has the power to define marriage as between a man and a woman. In that case, the status quo remains and married same-sex couples will continue to be denied those benefits.
3. The court could decide it lacks jurisdiction to hear the case, because the Obama administration has taken the position that DOMA is unconstitutional.  The administration is not defending it.  Some members of the U.S. House of Representatives have formed the Bipartisan Legal Advisory Group to intervene as a defendant in the case. The Supreme Court could say the group does not have standing to defend DOMA, therefore the Court of Appeals decision in U.S. v. Windsor would prevail.

Hollingsworth versus Perry deals with California’s current ban on same sex marriage. California allowed same sex marriage until 2004, when the California Supreme Court ordered officials to stop issuing marriage licenses until constitutional challenges to marriage statutes were resolved. (Here’s a link to the full transcript of the arguments in Hollingsworth versus Perry)

Possible rulings in the Hollingsworth versus Perry case

Justice Center Jason Brandeis believes there are four possible outcomes in Hollingsworth v. Perry:

1. The Supreme Court could uphold Proposition 8 as constitutional; therefore California’s ban on same-sex marriage is within the rights of the state.
2. Justices could decide the case on a technicality, ruling that groups intervening in the case don’t have standing. The California attorney general’s office and the governor are not defending the initiative because they don’t agree with Proposition 8.  One of the groups that supported the initiative intervened as a defendant in the U.S Supreme Court case.
3. The court could rule that a domestic-partner benefits law allowing same-sex couples the benefits and burdens of marriage without the designation violates the  constitution.
4. Because same-sex couples were allowed to marry in California for a period of time, the U.S. Supreme Court could say the state can’t withdraw a right established by the California Supreme Court after it’s been given.

Brandeis says marriage has traditionally been a state issue.

“If you think about marriage, you think about the classic wedding ceremony and someone says ‘by the power vested in me by the state of Alaska, I now pronounce you husband and wife.’ You never hear ‘by the power vested in me by the United States of America.’ Marriage is a creation of state law, though there are a number of federal laws that also affect marriage.”

Map of states that define marriage as between a man and a woman

States that define marriage as between a man and a woman. (Map courtesy National Conference of State Legislatures)

In fact, there are more than 1,000 federal laws and programs that affect married couples from taxes to adoption.

Jim Minnery is  president of Alaska Family Action. He calls same sex marriage an issue of state’s rights, federal overreach, and protecting the sanctity of marriage.

“It’s a 10th Amendment issue really in our view. That states should have the right to define marriage,” Minnery says.

Minnery believes same sex marriage does not uphold essential aspects of marriage such as monogamy, permanence and opposite-sex parents:

“It’s difficult for the public to grasp — but I think it’s important for people to know — that as some components of marriage become optional, meaning it’s no longer just one man and one woman, who’s to say that the other components are just as easily tossed aside.”

Professor Brandeis describes a number of U.S. Supreme Court justices as state’s rights advocates, who tend to defer to states to define social policies.

Given the makeup of the court and tenor of the oral arguments heard in March, Brandeis says it’s unlikely justices will ban all laws prohibiting same-sex marriage. However, he thinks the rulings will provide language that can be used in future cases to challenge bans on same-sex marriage.

No matter how the high court rules, couples like Olejasz and Peter-Contesse will be touched by the decision.

“If the Defense of Marriage Act is not struck down, basically that’s saying that we–our relationship of 23 years is not as important, it’s not equal to, it’s not recognized as any other straight couple would be. That doesn’t have just financial impact. That has emotional impact.”

 


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