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ACLU v. State & Municipality of Anchorage (10/28/2005) sp-5950
ACLU v. State & Municipality of Anchorage (10/28/2005) sp-5950
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ALASKA CIVIL LIBERTIES UNION,
| ) |
|
DAN CARTER and AL INCONTRO, | )
Supreme Court No. S-
10459 |
|
LIN DAVIS and MAUREEN
| ) |
|
LONGWORTH, SHIRLEY DEAN and | ) Superior Court
No. |
|
CARLA TIMPONE, DARLA MADDEN and | ) 3AN-99-11179
CI |
|
KAREN WOOD, AIMEE OLEJASZ and | ) |
|
FABIENNE PETER-CONTESSE, KAREN | ) O P I N I O
N |
|
STURNICK and ELIZABETH ANDREWS, | ) |
|
THERESA TAVEL and KAREN WALTER, | ) [No. 5950 -
October 28, 2005] |
|
CORIN WHITTEMORE and GANI | ) |
|
RUTHELLEN, and ESTRA BENSUSSEN | ) |
|
and CAROL ROSE GACKOWSKI, | ) |
|
| ) |
|
Appellants, | ) |
|
| ) |
|
v. | ) |
|
| ) |
|
STATE OF ALASKA and MUNICIPALITY | ) |
|
OF ANCHORAGE, | ) |
|
| ) |
|
Appellees.
| ) |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Stephanie Joannides, Judge.
Appearances: 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.
ODonnell, 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.
EASTAUGH, 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
The State of Alaska and the Municipality of Anchorage
offer health insurance and other employment benefits to the
spouses of their employees.4 These benefits are financially
valuable to employees and their spouses. Only couples who are
married are eligible to receive these benefits; unmarried couples
are not eligible. The state and the municipality have offered
some form of these employment benefits since 1955 and at least
1985, respectively.
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.
Article I, section 25 was adopted by Alaska voters in
1998. Commonly known as the Marriage Amendment, it provides: To
be valid or recognized in this State, a marriage may exist only
between one man and one woman. It effectively prohibits marriage
in Alaska between persons of the same sex.6 The plaintiff
employees consequently cannot enter into the formal relationship
marriage that the benefits programs require if the employees
are to confer these benefits on their domestic partners.
Put another way, the plaintiff employees and their same-
sex partners are absolutely precluded from becoming eligible for
these benefits. Although all opposite-sex couples who are
unmarried are also ineligible for these employment benefits, by
marrying they can change the status that makes them ineligible.
The plaintiffs did not challenge the Marriage Amendment
in the superior court (nor do they on appeal). Instead, their
amended complaint asked the superior court to declare that
denying employment benefits to same-sex domestic partners
violates, among other things, article I, section 1 of the Alaska
Constitution, which states in part: This constitution is
dedicated to the principle[] . . . that all persons are equal and
entitled to equal rights, opportunities, and protection under the
law.
All parties moved for summary judgment. The superior
court denied the plaintiffs motion and granted the defendants
motion. The court first rejected plaintiffs assertion that it
was necessary to apply heightened scrutiny in considering their
equal protection challenge; the court reasoned that heightened
scrutiny was unwarranted because the state and the municipality
were discriminating between married and unmarried employees, not
between opposite-sex and same-sex couples. The court also
determined that the only right at issue was a right to employee
benefits, which it ruled was not a fundamental right. Because
the court found that no suspect class or fundamental right was
involved, it applied the lowest level of scrutiny to the
governmental action. The court ruled that the defendants had a
legitimate interest in reducing costs, increasing administrative
efficiency, and promoting marriage. It then ruled that granting
benefits only to spouses of married employees bore a fair and
substantial relationship to those interests.
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.
III. DISCUSSION
A. Standard of Review
We review a grant or denial of summary judgment de
novo.8 Summary judgment is only appropriate when there is no
genuine issue of material fact, and the moving party is entitled
to judgment as a matter of law.9 Deciding the applicable
standard of scrutiny in an equal protection challenge to an
allegedly discriminatory statute presents a question of law.10
Likewise, identifying the nature of the challengers interest and
assessing the importance of the governmental interest and the fit
between that interest and the means chosen to advance it, present
questions of law.11 We will apply our independent judgment to
questions of law and adopt the rule of law most persuasive in
light of precedent, reason, and policy.12 We apply our
independent judgment when interpreting constitutional provisions
or statutes.13 A constitutional challenge to a statute must
overcome a presumption of constitutionality.14
B. Effect of the Marriage Amendment on Plaintiffs Equal
Protection Arguments
The plaintiffs, in challenging the spousal limitations
in the benefits programs, rely on article I, section 1 of the
Alaska Constitution, which guarantees the right to equal
treatment. It states that all persons are equal and entitled to
equal rights, opportunities, and protection under the law.15
Often referred to as the equal protection clause, this clause
actually guarantees not only equal protection, but also equal
rights and opportunities under the law.16
But Alaska Constitution article I, section 25, the
Marriage Amendment, states that [t]o be valid or recognized in
this State, a marriage may exist only between one man and one
woman. It effectively prohibits same-sex domestic partners from
marrying in Alaska and denies recognition in Alaska to foreign
marriages between same-sex couples.17 We must decide as a
threshold matter whether, as contended by the municipality and
amici curiae North Star Civil Rights Defense Fund, Inc. and the
Marriage Law Project, the Marriage Amendment precludes challenges
by same-sex couples to government policies that discriminate
between married and unmarried couples.
We must give effect to every word, phrase, and clause
of the Alaska Constitution.18 [S]eemingly conflicting parts are
to be harmonized, if possible, so that effect can be given to all
parts of the constitution.19
The Alaska Constitutions equal protection clause and
Marriage Amendment can be harmonized in this case because it
concerns a dispute about employment benefits. The Marriage
Amendment effectively precludes same-sex couples from marrying in
Alaska, but it does not explicitly or implicitly prohibit public
employers from offering to their employees same-sex domestic
partners all benefits that they offer to their employees spouses.
It does not address the topic of employment benefits at all.20
Nor have we been referred to any legislative history
implying that, despite its clear words, the Marriage Amendment
should be interpreted to deny employment benefits to public
employees with same-sex domestic partners.21 The Marriage
Amendment could have the effect of foreclosing the present
challenge only if it could be read to prohibit public employers
from offering benefits to their employees same-sex domestic
partners. But nothing in its text would permit that reading, and
indeed the state and the municipality implicitly assume on
appeal that governments are free to offer employment benefits to
their employees unmarried, domestic partners, including same-sex
domestic partners.
Because the public employers benefits programs could be
amended to include unmarried same-sex domestic partners without
offending the Marriage Amendment, that amendment does not
foreclose plaintiffs equal protection claims here. That the
Marriage Amendment effectively prevents same-sex couples from
marrying does not automatically permit the government to treat
them differently in other ways. It therefore does not preclude
public employees with same-sex domestic partners from claiming
that the spousal limitations in the benefits programs invidiously
discriminate against them.
The state equal protection clause cannot override more
specific provisions in the Alaska Constitution.22 But the
plaintiffs do not contend that the Marriage Amendment violates
Alaskas equal protection clause. They argue not that they have a
right to marry each other, but that the benefits programs
discriminate against them by denying them benefits that the
programs provide to others who, plaintiffs claim, are similarly
situated.
Because the Marriage Amendment does not resolve this
appeal, we turn to the merits of plaintiffs equal protection
arguments.
C. Challenge to the Spousal Limitations Under the Equal
Protection Clause of the Alaska Constitution
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
Amendment.24
To implement Alaskas more stringent equal protection
standard, we have adopted a three-step, sliding-scale test that
places a progressively greater or lesser burden on the state,
depending on the importance of the individual right affected by
the disputed classification and the nature of the governmental
interest at stake . . . .25
1. The benefits programs distinctions between same-
sex and opposite-sex domestic partners
A person or group asserting an equal protection
violation must demonstrate that the challenged law treats
similarly situated persons differently.26 Absent disparate
treatment of similarly situated persons, the law as applied to
the aggrieved group does not violate the groups right to equal
protection.27 We first consider whether, as the municipality
contends, there is no evidence of differential treatment, making
it unnecessary to engage in a sliding-scale analysis.28
The plaintiffs assert that the defendant governments
treat same-sex and opposite-sex couples differently. The
defendants argue that their programs differentiate on the basis
of marital status, not sexual orientation or gender. The
municipality asserts that all married employees can confer
benefits on their spouses, and no unmarried employees can confer
benefits on their partners. It therefore argues that it treats
same-sex couples no differently than any other unmarried couples,
and that there is consequently no basis for an equal protection
claim. Several courts examining similar programs have reached
this conclusion.29
We must therefore decide whether there is a
classification that results in different treatment for similarly
situated people.
We agree with the plaintiffs that the proper comparison
is between same-sex couples and opposite-sex couples, whether or
not they are married. The municipality correctly observes that
no unmarried employees, whether they are members of same-sex or
opposite-sex couples, can obtain the disputed benefits for their
domestic partners. But this does not mean that these programs
treat same-sex and opposite-sex couples the same. Unmarried
public employees in opposite-sex domestic relationships have the
opportunity to obtain these benefits, because employees are not
prevented by law from marrying their opposite-sex domestic
partners.30 In comparison, public employees in committed same-sex
relationships are absolutely denied any opportunity to obtain
these benefits, because these employees are barred by law from
marrying their same-sex partners in Alaska or having any marriage
performed elsewhere recognized in Alaska. Same-sex unmarried
couples therefore have no way of obtaining these benefits,
whereas opposite-sex unmarried couples may become eligible for
them by marrying. The programs consequently treat same-sex
couples differently from opposite-sex couples.31
2. Intent to discriminate
The state argues that an intent to discriminate is, or
should be, an essential element of a state equal protection claim
in Alaska. Both defendants contend that there was no
discriminatory intent, or evidence of animus against gays and
lesbians. Plaintiffs respond that Alaskas equal protection
clause does not require a showing of discriminatory intent.
We need not resolve this dispute here because we
conclude that the benefits programs are facially discriminatory.
When a law by its own terms classifies persons for different
treatment, this is known as a facial classification.32 And when a
law is discriminatory on its face, the question of discriminatory
intent is subsumed by the determination that the classification
established by the terms of the challenged law or policy is,
itself, discriminatory.33
To determine whether the benefits programs make a
facial classification, we must therefore examine the meaning of
the term spouse. The United States Supreme Court, in Personnel
Administrator v. Feeney, considered whether a state statute
granting a hiring preference to veterans violated equal
protection on the basis of gender.34 The Court concluded in part
that the statute was gender-neutral because the definition of
veterans in the statute ha[d] always been neutral as to gender
and that Massachusetts ha[d] consistently defined veteran status
in a way that ha[d] been inclusive of women who ha[d] served in
the military . . . .35
But unlike the neutral definition of veteran in Feeney,
Alaskas definition of the legal status of marriage (and, hence,
who can be a spouse) excludes same-sex couples.36 By restricting
the availability of benefits to spouses, the benefits programs by
[their] own terms classif[y] same-sex couples for different
treatment.37 Heterosexual couples in legal relationships have the
opportunity to marry and become eligible for benefits. In
comparison, because of the legal definition of marriage, the
partner of a homosexual employee can never be legally considered
as that employees spouse and, hence, can never become eligible
for benefits. We therefore conclude that the benefits programs
are facially discriminatory.38
The next question is whether the disparate treatment is
permitted under the sliding-scale analysis for equal protection
challenges in Alaska.39
3. Sliding-scale analysis under the Alaska
Constitution
Having resolved these preliminary issues by determining
(1) that it cannot be said as a matter of law that the benefits
programs do not treat public employees with same-sex domestic
partners differently, and (2) that the benefits programs are
facially discriminatory, we turn to the three-step, sliding-scale
analysis applicable to equal protection challenges under the
Alaska Constitution. This approach involves the following
process:
First, it must be determined at the
outset what weight should be afforded the
constitutional interest impaired by the
challenged enactment. The nature of this
interest is the most important variable in
fixing the appropriate level of
review . . . . Depending upon the primacy of
the interest involved, the state will have a
greater or lesser burden in justifying its
legislation.
Second, an examination must be
undertaken of the purposes served by a
challenged statute. Depending on the level
of review determined, the state may be
required to show only that its objectives
were legitimate, at the low end of the
continuum, or, at the high end of the scale,
that the legislation was motivated by a
compelling state interest.
Third, an evaluation of the states
interest in the particular means employed to
further its goals must be undertaken. Once
again, the states burden will differ in
accordance with the determination of the
level of scrutiny under the first stage of
analysis. At the low end of the sliding
scale, we have held that a substantial
relationship between means and ends is
constitutionally adequate. At the higher end
of the scale, the fit between means and ends
must be much closer. If the purpose can be
accomplished by a less restrictive
alternative, the classification will be
invalidated.[40]
The plaintiffs advance four alternative arguments to
support their equal protection challenge to the spousal
limitation in the benefits programs. The first three ask us to
apply a heightened level of scrutiny because the programs
allegedly (1) discriminate on the basis of sexual orientation;
(2) discriminate on the basis of gender; or (3) significantly
burden at least one of several important personal interests. The
plaintiffs alternatively contend that the programs cannot
withstand even the minimum level of scrutiny, either because the
governmental interests advanced are not legitimate, or because
the eligibility restrictions do not bear a fair and substantial
relationship to advancing those interests.
Because we conclude that the benefits programs cannot
survive minimum scrutiny, we need not address plaintiffs
alternative arguments.
a. Nature of plaintiffs interests: level of
scrutiny
The first step of our analysis requires us to determine
what weight to give the individual interests affected by the
benefits programs.41 Plaintiffs contend that the spousal
limitations significantly burden important personal interests,
such as the right to intimate association, and are therefore
subject to heightened scrutiny. But because minimum scrutiny is
sufficient to resolve this case, we do not need to decide whether
the plaintiffs interests are important or whether a fundamental
right is affected.42 Government action affecting an economic
interest receives minimum scrutiny,43 and the employment benefits
at issue here are undeniably economic.
b. The governmental interests and the
relationship between those interests and the
means chosen to advance them
The second step of the sliding-scale analysis requires
us to consider the governmental interests advanced by a
challenged law.44 Under minimum scrutiny, these interests need
only be legitimate.45 The third step requires us to evaluate the
means chosen to advance the interests identified from the second
step. Minimum scrutiny requires a fair and substantial relation
between the means (i.e., the classification) and the object of
the legislation.46
The state and the municipality contend that they have
three legitimate interests cost control, administrative
efficiency, and promotion of marriage in limiting employment
benefits to spouses and dependent children. We must therefore
consider whether these interests are legitimate and, if so,
whether the classification bears a fair and substantial
relationship to those interests.
Cost control. The state and the municipality argue
that cost control is a primary purpose of limiting the
availability of benefits to spouses of married employees. The
state explains that it must offer health insurance to attract and
retain a qualified work force and that the legislature should be
entitled to take reasonable measures to control the cost of that
offering. As the number of program participants increases, so
does the cost.
The state also asserts that the legislature wanted to
limit participation to that small group in a truly close
relationship with the employee. The municipality asserts that it
decided to limit employee benefits to a small, readily
ascertainable group of individuals closely connected to the
employee. These assertions indicate to us that the governmental
interest here is more specific than just cost control. Indeed,
if the governments were interested in simply saving money, the
companion goal of promoting marriage would seem to do the
opposite. As the benefits programs succeed in convincing couples
to marry or to stay married, the governments have to provide
benefits to more people. This apparent tension between cost
control and promotion of marriage can be harmonized by more
appropriately describing the governments interest in cost control
as an interest in controlling costs by limiting benefits to those
people in truly close relationship[s] with or closely connected
to the employee.
We assume that limiting benefit programs to those in
truly close relationships with the employee is a legitimate
governmental goal. But we do not see how an absolute exclusion
of same-sex domestic partners from being eligible for benefits is
substantially related to this interest. Many same-sex couples
are no doubt just as truly close[ly] relat[ed] and closely
connected as any married couple, in the sense of providing the
same level of love, commitment, and mutual economic and emotional
support, as between married couples, and would choose to get
married if they were not prohibited by law from doing so.
Although limiting benefits to spouses, and thereby excluding all
same-sex domestic partners, does technically reduce costs, such a
restriction fails to advance the expressed governmental goal of
limiting benefits to those in truly close relationships with and
closely connected to the employee.
Administrative efficiency. The state and the
municipality argue that the need to efficiently administer the
benefits programs justifies the spousal limitations. They argue
that marriage provides a bright-line distinction that is easily
applied, and that allowing employees to designate beneficiaries
other than spouses will make it more difficult to administer the
programs. The director of the benefits section of the Alaska
Division of Retirement and Benefits explained during deposition
the potential administrative difficulties that could arise if
employees were allowed to designate benefits recipients other
than spouses. She discussed theoretical burdens of determining
who other than a spouse might be eligible for coverage. The
municipality anticipates difficulty in deciding how long a same-
sex relationship must last, whether the partners must reside in
the same house, whether the relationship must be of a sexual
nature, and when the relationship ends.
We have recognized that administrative efficiency is a
legitimate governmental interest.47 There is no doubt that making
a less-clearly-defined (compared to spouses) category of persons
eligible for employment benefits would create administrative
burdens. But Alaskas Equal Protection Clause requires more than
just a rational connection between a classification and a
governmental interest; even at the lowest level of scrutiny, the
connection must be substantial.48
It is significant that other agencies, political
subdivisions, and states provide, or have provided, employment
benefits to their employees same-sex domestic partners. The
state does not dispute the plaintiffs contention that the
University of Alaska does or did so and that it adopted
qualifying criteria.49 Likewise, other states50 and
municipalities,51 including the City and Borough of Juneau,52 offer
the same health benefits to domestic partners, per their
eligibility standards, that they offer to married couples.
We do not assume, as plaintiffs assert, that the state
and the municipality can simply adopt the methodology the
University of Alaska adopted to administer its programs. The
state has many more employees than the university. Nonetheless,
that many other agencies, municipalities, and states offer
employment benefits to their employees same-sex domestic partners
suggests that the governments legitimate administrative concerns
can be satisfied. The availability of these benefits elsewhere
persuades us that administrative difficulties are not an
insurmountable barrier to providing benefits if our constitution
requires that they be provided. We therefore conclude that the
absolute exclusion of same-sex couples is not substantially
related to the goal of maximizing administrative efficiency.
Promotion of marriage. The state and municipality
assert that they have a legitimate interest in the promotion of
marriage. To support this assertion, the municipality points to
the ancient cultural and legal status of marriage and the place
of a marriage between one man and one woman as the historic
foundation of society. Amicus curiae Alaska Catholic Conference
also contends that the promotion of marriage is a legitimate
state interest. It cites in support several United States
Supreme Court decisions that have recognized the right to marry
as involv[ing] interests of basic importance in our society.53
The Supreme Court has also explained that marriage is a social
relation subject to the states police power.54
We have never considered whether the promotion of
marriage is a valid governmental interest.
Plaintiffs argue that whether or not the promotion of
marriage is a legitimate governmental interest, the state is not
truly interested in promoting marriage, because, if it were, it
would not have prevented gays and lesbians from entering into
married relationships. This argument has little merit. The
state rightly argues that just because the legislature did not
want to promote same-sex marriage does not mean it did not have a
sincere interest in promoting traditional marriage.
Plaintiffs also challenge the legitimacy of any
interest in promoting marriage. They argue that the state and
municipality may not assert an interest in promoting married
relationships for its own sake. They claim that the government
may not favor a class simply because it favors the class, and
that discrimination is never a legitimate interest. That
proposition is certainly correct, but the promotion of marriage
in and of itself is not necessarily discriminatory. And it is not
irrational. Among other things, it can encourage family
stability (an undeniably valid public goal), as the Alaska
Catholic Conference argues.
As to this issue, plaintiffs true challenge is to the
decision to promote family stability among opposite-sex couples
but not among same-sex couples. They argue that the social good
from family stability in same-sex relationships is just as
important and valuable as the social good from stable opposite-
sex relationships. Assuming plaintiffs argument is correct, it
would not establish that an interest in promoting marriage is not
legitimate. Given the social benefits potentially inherent in
marriage and the Supreme Courts statement that marriage is
subject to state regulation,55 we conclude that the promotion of
marriage is at least a legitimate governmental interest.
We accept the states contention that providing
employment benefits to spouses of its employees may encourage
persons to marry or stay married. Such benefits are financially
valuable and their availability may be an important or even
critical factor to persons deciding whether to marry. But the
question here is whether the means chosen to advance the interest
are substantially related to the governments interest.
The first part of the chosen means providing a benefit
to spouses is directly related to advancing the marriage
interest. But the second part of the chosen means restricting
eligibility to persons in a status that same-sex domestic
partners can never achieve cannot be said to be related to that
interest. There is no indication here that denying benefits to
public employees with same-sex domestic partners has any bearing
on who marries. There is no indication here that granting or
denying benefits to public employees with same-sex domestic
partners causes employees with opposite-sex domestic partners to
alter their decisions about whether to marry. There is no
indication here that any of the plaintiffs, having been denied
these benefits, will now seek opposite-sex partners with an
intention of marrying them. And if such changes resulted in sham
or unstable marriages entered only to obtain or confer these
benefits, they would not seem to advance any valid reasons for
promoting marriage. In short, there is no indication that the
programs challenged aspect the denial of benefits to all public
employees with same-sex domestic partners has any relationship
at all to the interest in promoting marriage. To repeat: making
benefits available to spouses may well promote marriage; denying
benefits to the same-sex domestic partners who are absolutely
ineligible to become spouses has no demonstrated relationship to
the interest of promoting marriage.
The municipality raises several other arguments that
justify brief response. It asserts that it can properly limit
eligibility because the Marriage Amendment sanctions the marriage
relationship. We discussed above the effect of the Marriage
Amendment and rejected a contention that it altogether forecloses
plaintiffs equal protection claims. See Part III.B. Moreover,
the marriage relationship sanctioned by the amendment cannot
justify unequal treatment unless the means relate to the purpose.
No one has suggested that the Marriage Amendment would permit the
municipality to double the pay of only its married employees or
permit it to hire only married persons.
The municipality seems to imply that accepting the
plaintiffs arguments would require defendants to extend marriage
benefits to members of other non-traditional marriages, such as
persons in polygamous relationships. But polygamy is illegal in
Alaska,56 as are incestuous relationships.57 Even though same-sex
domestic relationships are not marriages in Alaska,58 they are not
illegal. And, following Lawrence v. Texas, they could not be
made illegal.59 Nothing we hold here would require public
employers to extend to members of polygamous or incestuous
relationships the employment benefits they provide to their
employees spouses.
d. Equal protection conclusion
The governmental interests of cost control,
administrative efficiency, and promotion of marriage are
legitimate, but the absolute denial of benefits to public
employees with same-sex domestic partners is not substantially
related to these governmental interests.
In this case, because the programs at issue govern the
governments actions in their specific capacities as public
employers, rather than in their broader governmental capacities,
the programs marital preferences would have difficulty meeting
the means-to-end fit requirement unless they had a fair and
substantial relationship to the governments roles as public
employers. When the state or a political subdivision acts in
this capacity, it is subject to the overarching principles set
out in article I, section 1, and article XII, section 6, of the
Alaska Constitution. Those sections guarantee all Alaskans the
rewards of their own industry and require public employment to be
based on merit.60 Programs allowing the governments to give
married workers substantially greater compensation than they
give, for identical work, to workers with same-sex partners cut
against these constitutional principles yet further no legitimate
goal of the governments as public employers. However legitimate
these programs broader policy goals may be, then, the means they
employ would not be fairly and substantially related to
furthering those goals.
We therefore conclude, applying minimum scrutiny, that
the challenged programs violate the individual plaintiffs right
to equal protection of the law.
D. Trombley v. Starr-Wood Cardiac Group Does Not Control
Here.
The state argues that comments we made in Trombley v.
Starr-Wood Cardiac Group, P.C.61 should be dispositive of the
constitutional issues now before us.
Trombley did not address constitutional issues. The
Trombleys appealed the dismissal of their malpractice claims
arising out of Barbara Trombleys medical care. One issue was
whether Dale Trombley could bring a loss-of-consortium claim.
While Barbara was being treated, she was cohabiting with Dale
Trombley but was married to Keith Bradick. Some months later she
divorced Bradick and married Dale Trombley. The superior court
rejected Dales consortium claim on summary judgment. In
considering Dales appellate contention that an unmarried
cohabitant could claim loss of consortium, we said that [w]hether
spousal consortium claims should be extended to unmarried
cohabitants as a general matter is not an easy issue to resolve.
There are reasonable arguments on both sides.62 We did not
decide whether, as a general matter, unmarried cohabitants could
ever claim loss of consortium. We instead affirmed the denial of
the consortium claim because one of the cohabitants was actually
married to someone else when the alleged malpractice occurred.63
The state contends that it follows from our quoted
characterization of the argument limiting consortium claims to
legal spouses as reasonable that the legislatures choice in
denying employment benefits to unmarried cohabitants must also be
reasonable and hence constitutional. It asserts that both areas
concern simply the right to receive money.
And of course, because they were not a same-sex couple,
nothing prohibited Dale and Barbara from marrying as soon as
Barbara divorced her prior spouse. Plaintiffs correctly observe
that this court there analyzed distinctions between married
heterosexual couples and unmarried heterosexual couples, who can
marry. It did not analyze distinctions between heterosexual
couples [and] lesbian and gay couples, who cannot marry.
(Emphasis in original.) That we stated in dictum that it was
reasonable not to allow consortium claims by unmarried
cohabitants does not mean that the government can treat unmarried
couples of the same sex differently than it treats unmarried
couples of the opposite sex.
E. Remedy
Plaintiffs do not contend that finding an equal
protection violation would require that the benefits programs
themselves must end; they simply seek the same benefits and
opportunities potentially available to opposite-sex couples.
Only the spousal limitations in the programs are
unconstitutional, and they are invalid only to the extent they
deny benefits to persons who are absolutely precluded from
becoming eligible for those benefits, even though their domestic
relationship is not illegal.
Therefore, one possible remedy would be to give the
state and the municipality a reasonable opportunity to adopt
standards for making these benefits available to persons deemed
eligible. Many other public employers now have programs that may
be useful models,64 and private employers may also.65 Having held
unconstitutional the exclusion of same-sex couples from access to
civil marriage, the Supreme Judicial Court of Massachusetts in
Goodridge v. Department of Public Health, vacated the departments
summary judgment and remanded for entry of judgment consistent
with its opinion. But it stayed entry of judgment on remand for
180 days to permit the legislature to take such action as it may
deem appropriate in light of this opinion.66
Because the parties have not addressed the issue of
remedy, or how the state and municipality may comply, we invite
supplemental briefing on this issue.
IV. CONCLUSION
We conclude that the public employers spousal
limitations violate the Alaska Constitutions equal protection
clause. We therefore VACATE the judgment below. After hearing
from the parties about the issue of remedy, we will REMAND.
Until we resolve the issue of remedies, the disputed benefits
programs remain in effect.
_______________________________
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 (2003) (citing
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833,
850 (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
employees 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 (2003).
8 City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004); Powell v. Tanner, 59 P.3d 246, 248 (Alaska 2002).
9 Odsather v. Richardson, 96 P.3d 521, 523 n.2 (Alaska
2004).
10 See Reichmann v. State, Dept 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.
12 Hickel v. Southeast Conference, 868 P.2d 919, 923
(Alaska 1994); Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
13 Alaska Trademark Shellfish, LLC v. State, 91 P.3d 953,
956 (Alaska 2004); State, Commercial Fisheries Entry Commn 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 Constitutions equal protection clause affords
greater protection to individual rights than the United States
Constitutions 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, Dept
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 (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. 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. It explained that the amendments 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.
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, 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)).
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).
28 Cf. Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001).
29 Beaty v. Truck Ins. Exch., 8 Cal. Rptr. 2d 593, 596-97
(Cal. App. 1992); Hinman v. Dept of Pers. Admin., 213 Cal. Rptr.
410, 416 (Cal. App. 1985); Ross v. Denver Dept of Health &
Hosps., 883 P.2d 516, 519 (Colo. App. 1994); Phillips v.
Wisconsin Pers. Commn, 482 N.W.2d 121, 129 (Wis. 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 (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., 971 P.2d 435,
442-43, 447 (Or. App. 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 Admr v. Feeney, 442 U.S. 256 (1979).
35 Id. at 275.
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 , Dept 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, Dept 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, Dept 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 universitys plan, an employee and the
employees 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 others
immediate family; being responsible for each others 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 others 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. Govt 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 organizations website at
http://www.hrc.org (last visited October 21, 2005).
51 According to the Human Rights Campaigns 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.juneau.lib.ak.us/cbj/risk_management/pdfs/2005/Enroll-
ment Guide2005.pdf (last visited June 6, 2005).
53 Boddie v. Connecticut, 401 U.S. 371, 376 (1971); see
also Loving v. Virginia, 388 U.S. 1, 12 (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 (1942) (one of the basic
civil rights of man); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)
(essential to the orderly pursuit of happiness).
54 Loving, 388 U.S. at 7; Maynard v. Hill, 125 U.S. 190,
205 (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.
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 (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 Campaigns database, 247
Fortune 500 companies offer domestic partner benefits. The
database can be accessed through the organizations website at
http://www.hrc.org (last visited October 21, 2005).
66 Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 969-
70 (Mass. 2003); see also Baker v. State, 744 A.2d 864, 886 (Vt.
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.
