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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


DAN CARTER and AL INCONTRO, ) Supreme Court No. S- 10459
LONGWORTH, SHIRLEY DEAN and ) Superior Court No.
THERESA TAVEL and KAREN WALTER, ) [No. 5950 - October 28, 2005]
Appellants, )
v. )
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

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.

          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.
          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
          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.
     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
          Because  the  Marriage Amendment does not resolve  this
appeal,  we  turn  to the merits of plaintiffs  equal  protection
     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
          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
          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
               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
               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
          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
          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
          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.
          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

          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

     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

     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          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

     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

     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

     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      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 (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
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

     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 (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.