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ALASKA CIVIL LIBERTIES UNION v. STATE
122 P.3d 781 (2005)
ALASKA CIVIL LIBERTIES UNION, Dan Carter and Al Incontro, Lin Davis and Maureen Longworth, Shirley Dean and Carla Timpone, Darla Madden and Karen Wood, Aimee Olejasz and Fabienne Peter-Contesse, Karen Sturnick and Elizabeth Andrews, Theresa Tavel and Karen Walter, Corin Whittemore and Gani Ruthellen, and Estra Bensussen and Carol Rose Gackowski, Appellants,
v.
STATE of Alaska and Municipality of Anchorage, Appellees.
No. S-10459.
Supreme Court of Alaska.
October 28, 2005.
Allison E. Mendel, Mendel & Associates, Anchorage, Kenneth Y. Choe, American Civil Liberties Union Foundation, New York City, New York, and Tobias B. Wolff, Davis, California, for Appellants.
John B. Gaguine, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellee State of Alaska.
Neil T. O'Donnell, Atkinson, Conway & Gagnon, Anchorage, for Appellee Municipality of Anchorage.
James M. Gorski, Hughes, Thorsness, Gantz, Powell, Huddleston & Bauman LLC, Anchorage, for Amicus Curiae The Alaska Catholic Conference.
Rebecca L. Maxey, Law Offices of Rebecca L. Maxey, L.L.C., Anchorage, and Jennifer Middleton, Lambda Legal Defense and Education Fund, Inc., New York City, New York, for Amicus Curiae Lambda Legal Defense and Education Fund, Inc.
Kevin G. Clarkson, Brena, Bell & Clarkson, P.C., Anchorage, for Amici Curiae North Star Civil Rights Defense Fund, Inc. and Marriage Law Project.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINIONEASTAUGH, Justice. I. INTRODUCTION The State of Alaska and the Municipality of Anchorage offer valuable benefits to their employees' spouses that they do not offer to their unmarried employees' domestic partners. Essentially all opposite-sex adult couples may marry and thus become eligible for these benefits. But no same-sex couple can ever become eligible for these benefits because same-sex couples may not marry in Alaska.1 The spousal limitations in the benefits programs therefore affect public employees with same-sex domestic partners differently than public employees who are married. This case requires us to determine if it is reasonable to pay public employees who are in committed domestic relationships with same-sex partners less in terms of employee benefits than their co-workers who are married. In making this determination, we must decide whether the spousal limitations in the benefits programs violate the rights of public employees with same-sex domestic partners to "equal rights, opportunities, and protection under the law."2 The Alaska Constitution dictates the answer to that constitutional question. Irrelevant to our analysis must be personal, moral, or religious beliefs — held deeply by many — about whether persons should enter into intimate same-sex relationships or whether same-sex domestic partners should be permitted to marry. It is the duty of courts "to define the liberty of all, not to mandate [their] own moral code."3 Our duty here is to decide whether the eligibility restrictions satisfy established standards for resolving equal protection challenges to governmental action. We do not need to decide whether heightened scrutiny should be applied here because the benefits programs cannot withstand minimum scrutiny. Although the governmental objectives are presumably legitimate, the difference in treatment is not substantially related to those objectives. We accordingly hold that the spousal limitations are unconstitutional as applied to public employees with same-sex domestic partners, and we vacate the judgment below. We ask the parties to file supplemental memoranda addressing the issue of remedy. II. FACTS AND PROCEEDINGS
1. Alaska Const. art. I, § 25. 2. Alaska Const. art. I, § 1. As the issue is framed in this case, we need not reach any separate question of the independent right to benefits of a same-sex domestic partner of a public employee. 3. Lawrence v. Texas,539 U.S. 558, 559, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (citing Planned Parenthood of Southeastern Pa. v. Casey,505 U.S. 833, 850, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). 4. The plaintiffs' opening brief states that the benefits available for spouses of state employees include those provided by AS 39.20.360 (death benefits); AS 39.30.090 (life and health insurance); AS 39.35.450 (joint and survivor annuities); AS 39.35.535 (post-retirement health insurance); AS 14.25.010-.220 (benefits for retired teachers); and AS 22.25.010-.900 (benefits for retirees of state judiciary). These statutes do not expressly deny benefits to unmarried domestic partners, but each contains a clause expressly conferring them on an eligible employee's "spouse." The state refers to such clauses as "spousal limitations." We will sometimes use that terminology in this appeal.
No party has identified a Municipality of Anchorage ordinance containing an equivalent spousal limitation, but it is undisputed here that an unmarried domestic partner of a municipal employee is not eligible for employment benefits. We variously refer to the challenged state statutes and municipal benefit plans as "benefits laws" or "benefits programs." 5. We use the phrases "domestic partnership" and "committed relationship" interchangeably to refer to relationships between adult couples who reside together in long-term, interdependent, intimate associations. We use the phrase "domestic partners" to refer to persons in these relationships. The phrase includes both same-sex and opposite-sex couples. For our purposes, "domestic partners" also includes all married couples. 6. Section 25 does not contain express words of prohibition, but it confers validity or recognition in Alaska only on a marriage between one man and one woman. It therefore effectively prohibits marriage, or recognition of marriage, between persons of the same sex in Alaska.
AS 25.05.011(a), enacted in 1996, defines "marriage." It provides in part: "Marriage is a civil contract entered into by one man and one woman...." 7. Lawrence v. Texas,539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). 9. Odsather v. Richardson,96 P.3d 521, 523 n. 2 (Alaska 2004). 10. See Reichmann v. State, Dep't of Natural Res.,917 P.2d 1197, 1200 & n. 6 (Alaska 1996); Sonneman v. Knight,790 P.2d 702, 704 (Alaska 1990). 11. See Sonneman, 790 P.2d at 704-06. 13. Alaska Trademark Shellfish, LLC v. State,91 P.3d 953, 956 (Alaska 2004); State, Commercial Fisheries Entry Comm'n v. Carlson,65 P.3d 851, 858 (Alaska 2003). 14. Brandon v. Corr. Corp. of Am.,28 P.3d 269, 275 (Alaska 2001). 15. Alaska Const. art. I, § 1. 16. See Alaska Const. art. I, § 1; Malabed v. North Slope Borough,70 P.3d 416, 420 (Alaska 2003) ("We have long recognized that the Alaska Constitution's equal protection clause affords greater protection to individual rights than the United States Constitution's Fourteenth Amendment."); Schafer v. Vest,680 P.2d 1169, 1172 (Alaska 1984) (Burke, C.J., concurring, noting that this textual difference from the Federal Constitution emphasizes that the framers meant all three guarantees). 17. See Alaska Const. art. I, § 25.
Alaska voters adopted this amendment in 1998. See OFFICE OF THE LIEUTENANT GOVERNOR, Alaska Constitution: Alaska Constitutional Amendment Summary, at http://www.gov.state. ak.us/ltgov/akcon/ summary.html. The amendment took effect January 3, 1999. See Brause v. State, Dep't of Health & Soc. Servs.,21 P.3d 357, 358 (Alaska 2001). 18. See Owsichek v. State, Guide Licensing & Control Bd.,763 P.2d 488, 496 (Alaska 1988); State v. Ostrosky,667 P.2d 1184, 1191 (Alaska 1983); Park v. State,528 P.2d 785, 786-87 (Alaska 1974); CHESTER JAMES ANTIEAU, CONSTITUTIONAL CONSTRUCTION § 2.06, at 18-20 (1982). 19. ANTIEAU, supra note 18, § 2.15, at 27; see also Ostrosky, 667 P.2d at 1190 (holding that constitutional amendment "cannot, in turn, be challenged as unconstitutional under preexisting clauses in the same document"). 20. Explicitly denying benefits to public employees with same-sex domestic partners would arguably offend the Federal Constitution. In Romer v. Evans,517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), the United States Supreme Court struck down on federal equal protection grounds an amendment to the Colorado Constitution that repealed all local and statewide laws prohibiting discrimination based on sexual orientation. The Court explained that in addition to merely repealing state and local laws, the amendment "prohibits all legislative, executive, or judicial action at any level of state or local government designed to protect the named class...." Id. at 624, 116 S.Ct. 1620. The Court invalidated the amendment under the rational basis standard of judicial review, reasoning that the amendment could not satisfy even the minimal level of scrutiny. Id. at 632, 116 S.Ct. 1620. It explained that the amendment's "disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.... A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense." Id. at 633, 116 S.Ct. 1620. 21. See Brooks v. Wright,971 P.2d 1025, 1028 (Alaska 1999) (stating that court looks to plain language, purpose, and framers' intent in interpreting constitution); Native Vill. of Elim v. State,990 P.2d 1, 5 (Alaska 1999) (same); Arco Alaska, Inc. v. State,824 P.2d 708, 710 (Alaska 1992) (same). 22. Cf. Bess v. Ulmer,985 P.2d 979, 988 n. 57 (Alaska 1999) ("[A] specific amendment controls other more general [constitutional] provisions with which it might conflict."); ANTIEAU, supra note 18, § 2.16, at 27-28. 23. State, Dep't 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)). 24. Malabed v. North Slope Borough,70 P.3d 416, 420 (Alaska 2003); see also Stanek v. Kenai Peninsula Borough,81 P.3d 268, 272 & n. 15 (Alaska 2003). 25. Malabed, 70 P.3d at 420-21. 26. Alaska Inter-Tribal Council v. State,110 P.3d 947, 966 (Alaska 2005); Lawson v. Helmer,77 P.3d 724, 728 (Alaska 2003). 27. Lawson, 77 P.3d at 728; Brandon v. Corr. Corp. of Am.,28 P.3d 269, 275-76 (Alaska 2001). 29. Beaty v. Truck Ins. Exch.,6 Cal.App.4th 1455, 8 Cal.Rptr.2d 593, 596-97 (1992); Hinman v. Dep't of Pers. Admin.,167 Cal.App.3d 516, 213 Cal.Rptr. 410, 416 (1985); Ross v. Denver Dep't of Health & Hosps.,883 P.2d 516, 519 (Colo.App. 1994); Phillips v. Wisconsin Pers. Comm'n,167 Wis.2d 205, 482 N.W.2d 121, 129 (App.1992). 30. Some heterosexual couples, such as consanguineous couples, are also prohibited from marrying and are consequently prevented from obtaining benefits. But in those instances, the relationship itself is illegal, not merely the marriage. AS 11.41.450 classifies incest as a class C felony. No Alaska statute criminalizes homosexual relationships or homosexual conduct between consenting adults, nor could it. See Lawrence v. Texas,539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Moreover, as discussed below, just because some other, smaller group of people is also excluded does not mean that the plaintiffs here cannot have a valid claim. 31. See Tanner v. Oregon Health Scis. Univ.,157 Or.App. 502, 971 P.2d 435, 442-43, 447 (1998) (determining that denial of employment benefits to unmarried domestic partners of employees had "disparate impact" on homosexuals). 32. JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 14.4, at 711 (7th ed.2004) (emphasis added). 33. Hamlyn v. Rock Island County Metro. Mass Transit Dist.,986 F.Supp. 1126, 1133 (C.D.Ill. 1997); see also Cook v. Babbitt,819 F.Supp. 1, 14 (D.D.C.1993) ("In cases where a law or regulation makes an explicit reference to a suspect characteristic, purposeful discrimination is self-evident, and the measure is subject to challenge on its face without any evidentiary inquiry into the motives of the relevant government actors."). 34. Personnel Adm'r v. Feeney,442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). 35. Id. at 275, 99 S.Ct. 2282. 36. Alaska Const. art. I, § 25 ("To be valid or recognized in this State, a marriage may exist only between one man and one woman."). 37. See NOWAK & ROTUNDA, supra note 32, § 14.4, at 711. 38. We recognize that the benefits programs became discriminatory only after the legislature acted in 1996 and 1998 and the electorate adopted the Marriage Amendment in 1998. But, in our view, allowing a discriminatory classification to remain in force is no different than giving it the force of law in the first place. 39. In the case of a facial classification, "there is no problem of proof and the court can proceed to test the validity of the classification by the appropriate standard." NOWAK & ROTUNDA, supra note 32, § 14.4, at 711. 40. Matanuska-Susitna Borough Sch. Dist. v. State,931 P.2d 391, 396-97 (Alaska 1997) (quoting Alaska Pac. Assurance Co. v. Brown,687 P.2d 264, 269-70 (Alaska 1984)). 41. Id. at 396. 42. Malabed v. North Slope Borough,70 P.3d 416, 421 (Alaska 2003) (applying "close" scrutiny to enactment affecting "important" interest); State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc.,28 P.3d 904, 909 (Alaska 2001) (observing that "strict" scrutiny is applied to enactments affecting "fundamental rights"). 43. Church v. State, Dep't of Revenue,973 P.2d 1125, 1130 (Alaska 1999). 44. Planned Parenthood, 28 P.3d at 909. 45. Matanuska-Susitna Borough, 931 P.2d at 396-97 (quoting Alaska Pac. Assurance, 687 P.2d at 269-70). 46. Planned Parenthood, 28 P.3d at 911 (quoting Isakson v. Rickey,550 P.2d 359, 362 (Alaska 1976)). 47. Wilkerson v. State, Dep't of Health & Soc. Servs.,993 P.2d 1018, 1024 (Alaska 1999); State v. Albert,899 P.2d 103, 115 (Alaska 1995). 48. See Isakson v. Rickey,550 P.2d 359, 362 (Alaska 1976) (approving of "less speculative, less deferential, more intensified means-to-end inquiry" for traditional rational basis test). 49. Under the university's plan, an employee and the employee's partner submit an affidavit stating that they are financially interdependent partners and meet certain criteria of commitment and dependency. They must meet eight criteria including: having an exclusive personal relationship with each other for at least the last twelve consecutive months and an intention to continue the relationship indefinitely; residing together at the same primary residence for at least the last twelve consecutive months and intending to reside together indefinitely; considering themselves members of each other's immediate family; being responsible for each other's common welfare; and sharing financial obligations. They must also attest that they meet at least five of a second set of eight criteria, including: jointly purchasing or leasing real property; jointly owning an automobile; sharing a joint bank or credit account; naming each other as life insurance beneficiaries; and naming each other as primary beneficiaries in each other's wills. UNIVERSITY OF ALASKA, Explanation of Availability of Benefits Based on Financially Interdependent Relationship, at http://info.alaska. edu/hr/forms/PDF/ B140-FIPExplanation. pdf (last visited June 13, 2003). 50. E.g., CAL. GOV'T CODE § 22818, amended by 2005 Cal. Legis. Serv. 418 (West); OR. ADMIN. R. 101-015-0005(c); WASH. ADMIN. CODE § 182-12-260. A more complete list of states that provide health benefits to domestic partners can be found in a database maintained by the Human Rights Campaign. The database can be accessed through the organization's website at http:// www.hrc.org (last visited October 21, 2005). 51. According to the Human Rights Campaign's database, 130 cities and counties offer domestic partner benefits. As of October 21, 2005, the cities and counties included, for example, Atlanta, Broward County, Chicago, Denver, and New York City. See ATLANTA, GA., CODE OF ORDINANCES § 2-858; BROWARD COUNTY, FL., CODE § 16 1/2-156; CHICAGO, ILL., MUNICIPAL CODE ch. 2-152-072; DENVER, CO., REV. MUNICIPAL CODE § 18.321(4)-18.328; NEW YORK CITY, N.Y., ADMINISTRATIVE CODE § 3-244(f). 52. See http://www.jun eau.lib.ak.us/cbj/ risk_management/ pdfs/2005/Enrollment Guide2005.pdf (last visited June 6, 2005). 53. Boddie v. Connecticut,401 U.S. 371, 376, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); see also Loving v. Virginia,388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (describing marriage as "one of the vital personal rights essential to the orderly pursuit of happiness" by free people); Skinner v. Oklahoma ex rel. Williamson,316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) ("one of the basic civil rights of man"); Meyer v. Nebraska,262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) ("essential to the orderly pursuit of happiness"). 54. Loving, 388 U.S. at 7, 87 S.Ct. 1817; Maynard v. Hill,125 U.S. 190, 205, 8 S.Ct. 723, 31 L.Ed. 654 (1888) ("Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature."). 55. See Loving, 388 U.S. at 7, 87 S.Ct. 1817. 56. AS 11.51.140. 57. AS 11.41.450. 58. Alaska Const. art. I, § 25. 59. Lawrence v. Texas,539 U.S. 558, 567, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (holding that states may not criminalize private, consensual homosexual relations). 60. Alaska Const. art. I, § 1 ("This constitution is dedicated to the principle[ ] that all persons have a natural right to ... the enjoyment of the rewards of their own industry...."); Alaska Const. art. XII, § 6. 61. Trombley v. Starr-Wood Cardiac Group, P.C.,3 P.3d 916 (Alaska 2000). 62. Id. at 923 (emphasis added). 63. Id. 64. See supra notes 49-52. 65. According to the Human Rights Campaign's database, 247 Fortune 500 companies offer domestic partner benefits. The database can be accessed through the organization's website at http://www.hrc.org (last visited October 21, 2005). 66. Goodridge v. Dep't of Pub. Health,440 Mass. 309, 798 N.E.2d 941, 969-70 (2003); see also Baker v. State, 170 Vt. 194, 744 A.2d 864, 886 (1999). In Baker, the Vermont Supreme Court deferred to the prerogatives of the legislature "to craft an appropriate means of addressing this constitutional mandate." It therefore left the current statutory scheme in effect "for a reasonable period of time to enable the Legislature to consider and enact implementing legislation in an orderly and expeditious fashion." Id. at 887.
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