Over the protest of Alaska Governor Sean Parnell, who vowed to undertake what appears to be a futile appeal, U.S. District Judge Timothy M. Burgess issued a surprise marriage equality ruling on Sunday, October 12, in Hamby v. Parnell, 2014 WL 5089399, 2014 U.S. Dist. LEXIS 145876. Burgess held a hearing on the 10th and told the parties that he would issue a ruling “soon,” but nobody was expected a Sunday ruling just two days later. Burgess made his injunction effective immediately, and the state’s Bureau of Vital Statistics announced marriage license applications could be filed on Monday morning. Alaska’s marriage laws provide that licenses are not issued until three days after the application is filed, and a marriage cannot be performed until a license is issued. However, couples already married in other jurisdictions won immediate recognition for their marriages.
The state filed a motion with Judge Burgess on October 13 seeking a stay of the ruling, premised on the argument that the 9th Circuit might grant en banc review in %Latta v. Otter% as requested by Idaho Governor Butch Otter, or that a circuit split might open up soon leading the Supreme Court to take a marriage equality case for review. The state contended that allowing same-sex marriages to begin in Alaska while these possibilities existed could cause “chaos” in the administration of the state’s marriage laws. That didn’t seem a very convincing argument, in light of the 9th Circuit’s action announced on Oct. 13 allowing same-sex marriages to start in Idaho effective October 15.
Judge Burgess’s ruling was virtually pre-ordained, as the U.S. 9th Circuit Court of Appeals, which has jurisdiction over appeals from Alaska, had issued a unanimous ruling on October 7 striking down same-sex marriage bans in Nevada and Idaho, and the Supreme Court had denied Idaho’s application for a stay late on Friday, October 10. Some Idaho clerks had already begun issuing marriage license to same-sex couples upon word that a temporary stay issued on October 8 by Supreme Court Justice Anthony Kennedy had been lifted.
Burgess went beyond the 9th Circuit’s ruling. The 9th Circuit three-judge panel was unanimous in finding that the Nevada and Idaho bans violate the Equal Protection Clause of the 14th Amendment, applying the circuit’s “heightened scrutiny” standard to laws that discriminate because of sexual orientation. One member of that panel concurred, arguing that the ban was also a form of sex discrimination. Another member concurred in an opinion arguing that the bans violate the Due Process Clause by impairing the fundamental right to marry.
Judge Burgess, who was appointed to the court in 2005 by President George W. Bush, ruled on both Due Process and Equal Protection grounds.
Rejecting the state’s argument that the plaintiffs were seeking a “new” constitutional right of “same-sex marriage,” Burgess pointed out that although the Supreme Court’s cases describing marriage as a fundamental right had all involved different-sex couples, “nothing in the decisions indicates that the fundamental right to marry is circumscribed by other defining characteristics (e.g., in this case, a fundamental right to ‘male-female marriage’). The Supreme Court has never described or defined marriage as a right that is dependent upon the particular facts of the case before it or a right belonging to a particular group; on the contrary, its discussion of marriage has consistently been ‘in broad terms independent of the persons exercising it,” quoting from the 10th Circuit’s decision in Kitchen v. Herbert, the Utah same-sex marriage case.
“The Court has been called upon to use reasoned judgment to interpret the right to choose whom to marry and the breadth of that right under substantive due process,” wrote Burgess. “It is in consideration of this duty that the Court finds that marriage between individuals of the same sex is encompassed by our nation’s longstanding fundamental right to marry.” Furthermore, Burgess found it to be “obvious” that the Alaska same-sex marriage ban violated this right. “While homosexuality and the union of same-sex couples through marriage may be against the beliefs or beyond the moral parameters of some Americans,” he continued, “the core purpose of the Fourteenth Amendment is to protect an individual’s freedom by ensuring that a constitutional right is not ‘infringed simply because a majority of the people choose that it be.’ Alaska’s laws prohibiting same-sex marriage ‘usurp, disregard, and disrespect’ the fundamental right of all homosexuals to choose who to marry; a right of liberty, privacy, and association freely given to heterosexuals.” Burgess concluded that the state’s ban also violated the right of same-sex couples married elsewhere to have their marriages recognized in Alaska.
Turning to the Equal Protection argument, Burgess held that he was bound to apply “heightened scrutiny” as required by 9th Circuit precedent, placing the burden on Alaska to justify its marriage ban. He found that the interests argued by the state were insufficient to meet this burden. While conceding the government’s interest in allowing citizens to “vote and decide critical issues affecting their lives,” Burgess found that this interest could not justify letting the state “exercise its power to define marriage in a way that infringes upon individuals’ constitutional rights.”
“Even if a majority of citizens disapprove of homosexuality, an infringement on same-sex couples’ constitutional rights ‘must be predicated on legitimate state concerns other than disagreement with the choice the individual has made,'” since “fundamental rights may not be submitted to a vote.” Burgess’s discussion weaved together quotations from the 9th Circuit’s Nevada and Idaho decision, as well as the 7th Circuit’s earlier decision on marriage bans from Wisconsin and Indiana. But, ultimately, he found that there was no rational or logical relationship between Alaska’s interest in letting its citizens vote on policy issues and its obligation to respect the constitutional rights of gay citizens. Similarly rejecting an argument from “tradition,” Burgess quoted from 7th Circuit Judge Richard Posner’s musings about the terrible traditions that nobody would want to preserve.
Turning to the state’s argument that its ban was justified by concern for children, Burgess pointed out that children being raised by same-sex couples would benefit from their parents being able to marry. “It is estimated that 23% of same-sex couples in Alaska are raising children (biological, adopted, or step-children), the third highest percentage in the nation,” he wrote. “Preventing these individuals from participation in marriage places upon them unwarranted social, economic, and political burdens and prevents them from obtaining the extensive benefits and protection that are provided to families of opposite-sex couples.”
“By singling out homosexual couples and banning their ability to marry an individual of their choosing,” wrote Burgess, “it is impossible to assert that all Alaskans are equal under the state’s laws.”
Concluding in a way that signaled that he would have found the marriage bans unconstitutional even under the more deferential rational basis test, Burgess wrote, “In sum, any relationship between Alaska’s same-sex marriage laws and the government interests asserted by Defendants is either nonexistent or purely speculative. Alaska’s same-sex marriage laws are a prime example of how ‘the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.’ Refusing the rights and responsibilities afforded by legal marriage sends the public a government-sponsored message that same-sex couples and their familial relationships do not warrant the status, benefits, and dignity given to couples of the opposite sex.”
Burgess concluded by declaring the laws unconstitutional “for violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution,” and enjoined the state from enforcing those laws to exclude same-sex couples from marriage.
The plaintiffs in the case, four same-sex couples who married elsewhere and sought recognition of their marriages in Alaska and one couple seeking to marry in the state, were represented by Alaska attorneys Caitlin Shortell, Allison Mendel and Heather Gardner.
The Alaska ruling came just days after the Supreme Court had lifted Justice Kennedy’s temporary stay in the Idaho case, and shortly after the Coalition for the Protection of Marriage had withdrawn its applications to the Supreme Court and the 9th Circuit seeking a stay of the Nevada marriage ruling. When all of these factors were added up, it appeared that almost a dozen states had been added to the marriage-equality list since Monday morning, October 6, when the Supreme Court announced that it would not review any of the pending appeals from marriage equality rulings by the 4th, 7th and 10th Circuit courts of appeals, bringing the total to 30 marriage equality states, taking in an overwhelming majority of the nation’s population. Pending trial court action in at least five other states in the 4th, 9th and 10th circuit portended further developments soon, and an opinion could come at any time in the 6th Circuit, where appeals from four states were argued in August.