Hamby et al v. Parnell et al
ORDER granting 20 Motion for Summary Judgment. Signed by Judge Timothy M. Burgess on 10/12/14. (Burgess, Timothy)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
MATTHEW HAMBY, et al.,
Case No. 3:14-cv-00089-TMB
SEAN C. PARNELL, et al.,
The issue in this case is whether Alaska’s constitutional and statutory provisions prohibiting
same-sex marriage and the recognition of same-sex marriages lawfully entered in other states
violate the Fourteenth Amendment of the United States Constitution. 1 The Plaintiffs are five samesex couples living in Alaska; four of the couples are lawfully married in other states and one couple
is unmarried but seeks to marry in Alaska (“Plaintiffs”). 2
All couples wish to have their
commitments legally recognized by the State of Alaska. The Defendants, sued in their official
capacities, are: Sean Parnell, the Governor of the State of Alaska; Michael Geraghty, the Attorney
General of the State of Alaska; William J. Streur, the Commissioner of the Alaska Department of
Health and Human Services; and Phillip Mitchell, the section chief of the Division of Public Health
of the Alaska Department of Health and Social Services for the Alaska Bureau of Vital Statistics
See Dkt. 1.
Dkt. 20 at 10.
Dkt. 1 at 7-8.
Plaintiffs brought this action pursuant to 42 U.S.C. § 1983 and filed a motion for summary
judgment, arguing that Alaska’s laws banning same-sex marriage and refusing to recognize a
same-sex marriage lawfully entered in another state violate both the Due Process and Equal
Protection Clauses of the Fourteenth Amendment of the U.S. Constitution. 4 Plaintiffs seek
declaratory and injunctive relief. 5
The Defendants deny any violation of the Plaintiffs’
constitutional rights and therefore seek summary judgment as a matter of law in their favor. 6
For the reasons that follow, the Plaintiffs’ motion for summary judgment is GRANTED. The
Court finds that Alaska’s ban on same-sex marriage and refusal to recognize same-sex marriages
lawfully entered in other states is unconstitutional as a deprivation of basic due process and equal
protection principles under the Fourteenth Amendment of the U.S. Constitution.
Plaintiffs challenge the constitutionality of three Alaskan laws: Article 1, Section 25 of the
Alaska Constitution and Alaska statutes Section 25.05.011 and Section 25.05.013 (collectively,
“the same-sex marriage laws”). Article 1, Section 25 of the Alaska Constitution, adopted in 1998
and effective in 1999, confines the definition of a valid marriage to couples of the opposite sex:
To be valid or recognized in this State, a marriage may exist only between one man and
one woman. 7
See Dkt. 20.
Dkt. 1 at 2, 33.
AK CONST. Art. 1, §25 (1998).
Alaska statute Section 25.05.011, enacted in 1996, reiterates the definition of marriage as being
between male-female couples and prevents the solemnization of any marriage that does not meet
§ 25.05.011. Civil Contract
(a) Marriage is a civil contract entered into by one man and one woman that requires
both a license and solemnization. The man and the woman must each be at least one
of the following:
(1) 18 years of age or older and otherwise capable;
(2) Qualified for a license under Alaska Stat. § 25.05.171; or
(3) A member of the armed forces of the United States while on active duty.
(b) A Person may not be joined in marriage in this state until a license has been obtained
for that purpose as provided in this chapter. A marriage performed in this state is not
valid without solemnization as provided in this chapter. 8
Alaska law recognized valid marriages entered in other states. However, in 1996, Section
25.05.013 was written to specifically exclude out-of-state same-sex marriages from that formal
recognition. It provides:
§ 25.05.013. Same-sex marriages.
(a) A marriage entered into by persons of the same sex, either under common law or
under statute, that is recognized by another state or foreign jurisdiction is void in this
state, and contractual rights granted by virtue of the marriage, including its
termination, are unenforceable in this state.
(b) A same-sex relationship may not be recognized by the state as being entitled to the
benefits of marriage. 9
In combination, the same-sex marriage laws specifically identify homosexual couples as a
group that is (1) not entitled to the benefits and responsibilities conferred by marriage, and (2)
excluded from having lawful out-of-state marriages recognized by the State of Alaska. The
Plaintiffs argue that the laws’ effect stigmatizes same-sex couples and their children by relegating
them to a “second class status,” as well as “undermines the Plaintiffs’ ability to achieve their
ALASKA STAT. §25.05.011 (1996).
ALASKA STAT. §25.05.013 (1996).
aspirations, disadvantages them financially, and denies them ‘dignity and status of immense
import.’” 10 The Plaintiffs allege that these harms deprive them of their rights under the Fourteenth
Amendment, which include the right of all people to choose whom to marry and to be treated
equally under the law. 11
Summary judgment is appropriate where “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 12 The facts of this case are not in
dispute; the Plaintiffs present a facial challenge to the constitutionality of Alaska’s laws prohibiting
same-sex marriage and the recognition of same-sex marriages lawfully entered in other states.
Challenges regarding facial constitutionality implicate only issues of law. 13
demonstrate that Alaska’s same-sex marriage laws are facially invalid, the Court will strike the
laws as unconstitutional. 14
The Fourteenth Amendment of the U.S. Constitution provides, in relevant part, that no state
shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.” 15 “At the heart of [Fourteenth
Amendment] liberty is the right to define one’s own concept of existence, of meaning, of the
Dkt. 1 at 11 (quoting United States v. Windsor, 133 S.Ct. 2675, 2692 (2013)).
Dkt. 20 at 11; see Zablocki v. Redhail, 434 U.S. 374, 384 (1978).
Fed. R. Civ. P. 56(a).
See, e.g., U.S. v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003).
See Citizens United v. Federal Election Com’n, 558 U.S. 310, 312 (2010).
U.S. CONST. amend. XIV.
universe, and of the mystery of human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion of the State.” 16 While the power to
define and regulate marriage is allocated to the separate states, state laws still may not infringe
upon individual constitutional rights. 17 Although the freedoms guaranteed by the Due Process and
Equal Protection Clauses of the Fourteenth Amendment are closely related and often intersect,18
the Court will address each clause in turn.
A. The Due Process Clause
Due process under the Fourteenth Amendment, containing both procedural and substantive
components, protects “all fundamental rights comprised within the term liberty…from invasion by
the States.” 19 Protection provided by the substantive component of due process “barr[s] certain
government actions regardless of the fairness of the procedures used to implement them…[and]
serves to prevent governmental power from being ‘used for purposes of oppression.’” 20
Furthermore, “[n]either the Bill of Rights nor the specific practices of States at the time of the
adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty
which the Fourteenth Amendment protects.” 21
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992).
See, e.g., Windsor, 133 S.Ct. at 2680; Loving v. Virginia, 388 U.S. 1, 7 (1967).
Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“Equality of treatment and the due process
right to demand respect for conduct protected by the substantive guarantee of liberty are linked
in important respects….”).
Casey, 505 U.S. at 846-47 (quoting Whitney v. California, 274 U.S. 357, 373 (1927)).
Daniels v. Williams, 474 U.S. 327, 331 (1986) (internal citation omitted) (quoting Den ex
dem. Murray v. Hoboken Land & Imp. Co., 59 U.S. 272, 277 (1855)).
Casey, 505 U.S. at 848.
To be considered “fundamental,” a right must be “objectively, deeply rooted in the Nation’s
history and tradition” 22 and “implicit in the concept of ordered liberty” to the point that “neither
liberty nor justice would exist if they were sacrificed.” 23 In addition to procreation, contraception,
family relationships, child rearing, and education, 24 the Supreme Court has consistently recognized
that an individual’s choice to marry is a fundamental right protected by due process. 25 While the
power to define and regulate marriage is allocated to the separate states, state laws still may not
infringe upon individual constitutional rights. 26
Here, the Court is initially tasked with determining whether the right to marry an individual of
the same sex and the right to have legal recognition of a same-sex marriage entered in another state
are fundamental rights. If so, the Court asks whether and to what degree Alaska’s same-sex
marriage laws infringe upon those rights. 27 If the laws significantly interfere with the Plaintiffs’
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).
Palko v. Connecticut, 302 U.S. 319, 325-26 (1937) (overruled on other grounds by Benton v.
Maryland, 395 U.S. 784 (1969)).
Carey v. Population Services Int’l, 431 U.S. 678, 685 (1977).
See Turner v. Safley, 482 U.S. 78, 95 (1987) (“[T]he decision to marry is a fundamental right”
and is “of fundamental importance for all individuals.”); Cleveland Bd. of Educ. v. La Fleur,
414 U.S. 632, 639-640 (1974) (“This Court has long recognized that freedom of personal choice
in matters of marriage and family life is one of the liberties protected by…the Fourteenth
Amendment.”); Loving, 388 U.S. at 12 (“The freedom to marry has long been recognized as one
of the vital personal rights essential to the orderly pursuit of happiness…fundamental to our very
existence and survival.”).
See, e.g., Windsor, 133 S.Ct. at 2680; Loving, 388 U.S. at 7.
Beller v. Middendorf, 632 F.2d 788, 807 (9th Cir. 1980) (“[S]ubstantive due process scrutiny
of a government regulation involves a case-by-case balancing of the nature of the individual
interest allegedly infringed, the importance of the government interest furthered, the degree of
infringement, and the sensitivity of the government entity responsible for the regulation to more
carefully tailored alternative means of achieving its goals.”).
rights, the laws “cannot be upheld unless [they are] supported by sufficiently important state
interests and [are] closely tailored to effectuate only those interests.” 28
B. The Equal Protection Clause
In analyzing an equal protection challenge, the Court first identifies the classification made by
the state. 29 Depending on the classification, the Court uses different standards of review to
determine whether a law violates equal protection. 30 The highest level of scrutiny, strict scrutiny,
applies to “suspect classes” (e.g., classifications based on race, religion, and national origin) and
requires the government to prove that a discriminatory law is “narrowly tailored” to achieving a
“compelling” state interest. 31 The lowest level of scrutiny, rational basis review, applies to
classifications that are generally assumed to be valid (e.g., the elderly and mentally handicapped)
and requires that the law be “rationally related” to a “legitimate” state interest. 32 The Court applies
intermediate scrutiny for “quasi-suspect” classes (e.g., gender and illegitimacy), requiring that the
law be “substantially related” to achieving a “sufficiently important governmental interest.” 33
In this case, the State of Alaska has constructed its marriage laws to exclude a class identified
on the basis of sexual orientation. The Supreme Court has yet to declare what standard of review
Zablocki, 434 U.S. at 388.
See, e.g., United States v. Lopez-Flores, 63 F.3d 1469, 1472 (9th Cir. 1995)
See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007);
Johnson v. California, 543 U.S. 499 (2005).
See Heller v. Doe, 509 U.S. 312, 320 (1993); Bower v. Whitman, 671 F.3d 905, 917 (9th Cir.
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-41; United States v.
Virginia, 518 U.S. 515, 524 (1996).
is appropriate for laws that discriminate on this basis, but the Court is not left without guidance.
Just days ago, in Latta, v. Otter, the Ninth Circuit employed heightened scrutiny to consider the
constitutionality of same-sex marriage bans in Nevada and Idaho because the laws “discriminate
on the basis of sexual orientation.” 34 At oral argument on October 10, 2014, the parties agreed
that Latta is precedential in this circuit. 35
Latta unambiguously requires that the Court employ a heightened standard of review to this
case. In Latta, the Ninth Circuit assessed the constitutionality of same-sex marriage bans in Idaho
and Nevada that used similar language to that in Alaska’s same-sex marriage bans. 36 Finding that
the laws discriminate on the basis of sexual orientation, the Ninth Circuit employed heightened
scrutiny to find that the states failed to demonstrate that the laws furthered any legitimate
governmental purpose. 37 Lacking sufficient justification, the Ninth Circuit held that the laws were
unconstitutional for “impos[ing] legal, financial, social and psychic harms on numerous citizens”
2014 WL 4977682 at *15 (9th Cir. Oct. 7, 2014). The Ninth Circuit’s earlier decision in
Smithkline Beecham v. Abbott Laboratories, 740 F.3d 471, 481-84 (9th Cir. 2014) provided that,
in light of Windsor, “heightened scrutiny” is the appropriate standard of review when laws
discriminate based on sexual orientation. Even absent the Ninth Circuit’s decision in Latta, the
Court would employ the heightened standard of review as required by Smithkline, leading to the
same result found in this opinion.
When oral argument began, a stay by the Supreme Court was in place as to part of the Latta
decision; by the end of oral argument, that stay had been lifted. Regardless, Latta is the
controlling law of this Circuit. Wedbush, Noble, Cooke, Inc. v. S.E.C., 714 F.2d 923, 924 (9th
Cir. 1983) (“It is fundamental that the mere pendency of an appeal does not, in itself, disturb the
finality of a judgment. Similarly, the pendency of a petition for rehearing does not, in itself,
destroy the finality of an appellate court’s judgment.”) (internal citations omitted).
2014 WL 4977682, at *4, n.2.
Id. at *13, *33.
of Idaho and Nevada. 38
It is within this framework that the Court will determine the
constitutionality of Alaska’s same-sex marriage laws.
When applying a heightened standard of review under the Equal Protection Clause, the Court
must invalidate discriminatory laws unless they have an “exceedingly persuasive justification.” 39
The Defendants must show “at least that the classification serves important governmental
objectives and that the discriminatory means employed are substantially related to achievement of
those objectives.” 40
Moreover, the classification must be based on legitimate government
concerns “other than disagreement with the choice the individual has made.” 41 Nevertheless, this
Court recognizes the Supreme Court’s cautioning that “equal protection is not a license for courts
to judge the wisdom, fairness, or logic of legislative choices.” 42 In the context of the case at hand,
the Court analyzes the objectives of Alaska’s same-sex marriage laws and their relationship to any
important governmental objectives.
Since the Supreme Court struck down part of the federal Defense of Marriage Act (“DOMA”)
last year in United States v. Windsor, numerous federal courts have addressed the constitutionality
of state bans on same-sex marriages. 43 Currently, four circuits have ruled on the issue; the Ninth,
Id. at 32.
Virginia, 518 U.S. at 531.
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (internal quotations
Hodgson v. Minnesota, 497 U.S. 417, 435 (1990).
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).
Windsor, 133 S.Ct. 2675; see, e.g., Brenner v. Scott, 2014 WL 4113100 (N.D. Fla. Aug. 21,
2014); Love v. Beshear, 2014 WL 2957671 (W.D. Ky. July 1, 2014); Whitewood v. Wolf, 2014
Seventh, Fourth, and Tenth Circuits each held that state laws prohibiting same-sex marriage are
unconstitutional. 44 While the question before the Court today is not identical to that in Windsor,
the holding of the Supreme Court provides insight. The Windsor court found that DOMA
“impose[d] a disadvantage, a separate status, and so a stigma upon all those who enter same-sex
marriages” and created a differentiation that “demeans the [same-sex] couple, whose moral and
sexual choices the Constitution protects.” 45
The Plaintiffs continuously cite Windsor to argue that Alaska’s same-sex marriage laws
are analogous to DOMA because the laws not only deny them “equal dignity” by treating
heterosexuals and homosexuals differently, but are also demeaning to their families, undermine
their personal autonomy, and are in violation of their constitutional rights. 46 The Defendants argue
that Windsor is inapposite to this case because the Supreme Court’s holding was based on the
state’s authority to define marriage and the inability of the federal government to interfere with
that authority. 47 The Defendants’ interpretation of Windsor is that it “stands for the proposition
that the definition of marriage is an issue for the states.” 48 State sovereignty in defining marriage
WL 2058105 (M.D. Pa. May 20, 2014); DeBoer v. Snyder, 973 F.Supp.2d 757 (E.D. Mich.
2014); DeLeon v. Perry, 975 F.Supp.2d 632 (W.D. Tex. 2014); McGee v. Cole, 2014 WL
321122 (S.D. W. Va. Jan. 29., 2014).
See Latta, 2014 WL 4977682; Baskin v. Bogan, 2014 WL 4359059 (7th Cir. Sept. 4, 2014);
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.
2014); see also Bishop v. Smith, 2014 WL 3537847 (10th Cir. July 18, 2014).
133 S.Ct. at 2693 (citing Lawrence, 539 U.S. 558).
Dkt. 20 at 2, 24-25, 36-40, 43.
133 S.Ct. at 2689-91.
Dkt. 31 at 13.
is certainly emphasized in Windsor, but the primary principle behind the Supreme Court’s ruling
is that regulation of marriage consistent with the Constitution requires that state laws not “degrade
or demean” a class of people without sufficient justification. 49
A. Alaska’s Same-Sex Marriage Laws Violate Due Process
1. Alaska’s ban on same-sex marriage violates the unmarried plaintiffs’ fundamental right
to choose whom to marry
The parties do not dispute that our nation has a longstanding history of recognizing an
individual’s fundamental right to marry, which is protected by the Due Process Clause of the
Fourteenth Amendment. 50 However, the Plaintiffs argue that same-sex marriage is encompassed
in the right to marry while the Defendants contend that the right to marriage, as rooted in our
nation’s history and tradition, is strictly between a man and a woman.
It is true, as Defendants argue, that in categorical terms “[t]he Supreme Court has never held
that there is a fundamental constitutional right to same-sex marriage.” 51 This does not, however,
equate to the notion that no such right exists. As the Supreme Court in Casey explained:
It is tempting, as a means of curbing the discretion of federal judges, to suppose that…the
Due Process Clause protects only those practices, defined at the most specific level, that were
protected against government interference by other rules of law when the Fourteenth
Amendment was ratified. But such a view would be inconsistent with our law. It is a promise
of the Constitution that there is a realm of personal liberty which the government may not
In other words, even rights not explicitly mentioned in the Bill of Rights can be protected by
substantive due process. For example, in Loving v. Virginia, the “right to interracial marriage”
133 S.Ct. at 2695.
Glucksberg, 521 U.S. at 726.
Dkt. 31 at 12.
Casey, 505 U.S. at 847 (internal citations omitted).
was not included in the Constitution (in fact, it was illegal in most states at the time), nor did the
Supreme Court declare a fundamental right to interracial marriage. Rather, the decision hinged on
the determination that the freedom to marry, without an additional descriptor, “resides with the
individual and cannot be infringed by the State.” 53 In this way, the Supreme Court found
interracial marriage “to be an aspect of liberty protected against state interference by the
substantive component of due process.” 54
While the Supreme Court cases defining marriage as a “fundamental right” involved oppositesex couples, nothing in the decisions indicates that the fundamental right to marry is circumscribed
by other defining characteristics (e.g., in this case, a fundamental right to “male-female marriage”).
The Supreme Court has never described or defined marriage as a right that is dependent upon the
particular facts of the case before it or a right belonging to a particular group; on the contrary, its
discussion of marriage has consistently been “in broad terms independent of the persons exercising
it.” 55 The choice of whom to marry is an “associational right” that is “of basic importance in our
society” and is “sheltered by the Fourteenth Amendment against the State’s unwarranted
usurpation, disregard, or disrespect.” 56
Our society places immense value on marriage because it “involve[es] the most intimate and
personal choices a person may make in a lifetime, choices central to personal dignity and
In Griswold v. Connecticut, the Supreme Court described in detail the
388 U.S. at 12.
Casey, 505 U.S. at 847-48.
Kitchen, 755 F.3d at 1209.
M.L.B. v. S.L.J., 519 U.S. 102, 116 (1971).
Casey, 505 U.S. at 851.
autonomous essence of marriage and the private choice involved when entering such a
Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the
degree of being sacred. It is an association that promotes a way of life, not causes; a harmony
in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions. 58
More recently, in Lawrence v. Texas, the Supreme Court explained that “our laws and tradition
afford constitutional protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education…. Persons in a homosexual
relationship may seek autonomy for these purposes, just as heterosexual persons do.” 59 The
holding in Lawrence concerned an anti-sodomy law in Texas, but the reasoning was rooted in the
persistent concept of individual privacy and independence when exercising the rights to make
decisions on personal matters. In Lawrence, the critical mistake identified by the Supreme Court
in its earlier reasoning is the same error made by Defendants in this case: in the desire to narrowly
define the rights protected by the Fourteenth Amendment, they “fail to appreciate the extent of
the liberty at stake.” 60
Our forefathers wrote the Bill of Rights hundreds of years ago and could not have predicted
“the components of liberty in its manifold possibilities” as we see today. 61 As the Supreme Court
articulately explained, “those who drew and ratified the Due Process Clause…knew times can
381 U.S. 479, 486 (1965).
539 U.S. at 574.
Id. at 567.
Id. at 578-79.
blind us to certain truths and later generations can see that laws once necessary and proper in fact
only serve to oppress. As the Constitution endures, persons in every generation can invoke its
principles in their own search for greater freedom.” 62 The Plaintiffs in this case do not ask the
Court to recognize an entirely new fundamental right to same-sex marriage; rather, Plaintiffs wish
to participate in the existing liberty granted to other couples to make a deeply personal choice
about a private family matter.
Here, “[t]he inescapable fact is that adjudication of substantive due process claims may call
upon the Court in interpreting the Constitution to exercise that same capacity which by tradition
courts always have exercised: reasoned judgment….That does not mean we are free to invalidate
state policy choices with which we disagree; yet neither does it permit us to shrink from the duties
of our office.” 63 The Court has been called upon to use reasoned judgment to interpret the right to
choose whom to marry and the breadth of that right under substantive due process. It is in
consideration of this duty that the Court finds that marriage between individuals of the same sex
is encompassed by our nation’s longstanding fundamental right to marry.
The Court then must determine whether Alaska’s same-sex marriage laws significantly
interfere with the Plaintiffs’ right to marry whom they choose. The answer is obvious as to the
unmarried Plaintiffs: the law prevents them from exercising that right. For many years, there have
been powerful voices condemning homosexual conduct as immoral, but the Court’s obligation in
this case is not to determine or mandate a particular moral code, but rather “to define the liberty of
all.” 64 While homosexuality and the union of same-sex couples through marriage may be against
Casey, 505 U.S. at 849.
Id. at 850.
the beliefs or beyond the moral parameters of some Americans, the core purpose of the Fourteenth
Amendment is to protect an individual’s freedom by ensuring that a constitutional right is not
“infringed simply because a majority of the people choose that it be.” 65 Alaska’s laws prohibiting
same-sex marriage “usurp, disregard, and disrespect” the fundamental right of all homosexuals to
choose who to marry; a right of liberty, privacy, and association freely given to heterosexuals. 66
2. Alaska’s refusal to recognize valid same-sex marriages entered in other states violates the
married Plaintiffs’ fundamental right to have their marriages recognized
In light of the Court’s determination that Alaska’s laws prohibiting same-sex marriage violate
Plaintiffs’ fundamental right to choose whom to marry, it necessarily follows that Alaska’s antirecognition law concerning valid same-sex marriages entered in other states also violates that right.
By refusing to recognize valid same-sex marriages entered in other states and declaring them void
in Alaska, Section 25.05.013 effectively strips same-sex married couples of their liberty interest
in having their valid marriages recognized. 67 Therefore, Alaska Statute 25.05.013 also violates
the married Plaintiffs’ fundamental right to have their valid out-of-state marriages recognized
under the due process clause.
If this case concerned only a due process claim, the Court would begin to assess the
Defendants’ assertions of the governmental interests and whether Alaska’s same-sex marriage
Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 736-37 (1964).
See Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Griswold, 381 U.S. at 486; M.L.B., 519
U.S. at 116.
See Windsor, 133 S.Ct. at 2694 (The refusal of one jurisdiction to recognize a legally
established marriage from another jurisdiction “demeans the couple, whose moral and sexual
choices the Constitution protects…and whose relationship the [latter] State has sought to
laws are related to those interests. However, since this case also involves a claim under the Equal
Protection Clause, which requires the same inquiry, the Court reserves the analysis until after an
initial discussion of the equal protection claim.
B. Alaska’s Same-Sex Marriage Laws Violate Equal Protection
“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.” 68 Alaska’s same-sex marriage laws declare that it is more difficult for homosexuals
to seek the benefits of lawful marriage with a person of their choosing than it is for heterosexuals.
Even if we accept the Defendants’ contention that Alaska’s same-sex marriage laws were not
intended to discriminate against or harm same-sex couples, but rather to “retain the traditional
definition of marriage,” 69 the fact is that the laws do discriminate.
Defendants provide minimal evidentiary support for the argument concerning the legislative
history of Alaska’s same-sex marriage laws, stating simply that Alaskan voters chose to adopt the
definition of marriage as between “one man and one woman.” 70 Defendants point out that the
Statement in Support of the Marriage Amendment for the Official Election Pamphlet declares that
the amendment “does not ‘target’ anybody or ‘deny’ anybody their rights”; that “[a]ll Alaskans
are equal before the law. But that’s not what this debate is about.” 71 In fact, that is exactly what
the debate on marriage is about. By singling out homosexual couples and banning their ability to
Romer v. Evans, 517 U.S. 620, 633 (1996).
Dkt. 31 at 9.
Id. at 9-10.
Id. at 9.
marry an individual of their choosing, it is impossible to assert that all Alaskans are equal under
the state’s laws.
Defendants contend that the same-sex marriage laws do not deny any benefits, and the Court
acknowledges that Alaska grants same-sex couples some benefits corresponding with those
granted to legally-married opposite-sex couples. However, the inability to legally marry denies
same-sex couples a panoply of state and federal benefits afforded opposite-sex couples. 72 The
Court looks to Windsor where the Supreme Court found that the “principle purpose” and
“necessary effect” of DOMA were to “impose inequality” on same-sex couples and their families
by forbidding them from participating in marriage. 73 Here, rather than promoting marriage
between a man and woman by granting them additional rights and privileges, the apparent purpose
and practical effect of Alaska laws is to impose inequality upon same-sex couples by denying them
the rights and privileges afforded heterosexual couples.
Intermediate scrutiny places the “demanding” burden of justification on the Defendants to
prove that the objectives of Alaska’s same-sex marriage laws are “substantially related” to
achieving an “important governmental objective.” 74 Additional considerations for assessing laws
that discriminate based on sexual orientation include the “resulting injury and indignity,” “the
‘disadvantage’ inflicted on gays and lesbians,” and the “government-sponsored message” sent by
See, e.g., 26 U.S.C. § 6013 (granting married couples the ability to file income taxes jointly);
26 U.S.C. §1041 (right for married couples to transfer assets to one’s spouse while married or
during divorce without tax liability); 5 U.S.C. §§ 8901(5), 8905 (healthcare benefits for legallymarried spouses of federal employees).
Windsor, 133 S.Ct. at 2694-95.
Virginia, 518 U.S. at 524, 533; Hibbs v. Dep’t of Human Resources, 273 F.3d 844, 855 (9th
the laws about the status of homosexuals in our society. 75 Here, Defendants assert one primary
governmental objective: affirming the citizens’ right to change law through the democratic
process. The Defendants’ argument includes the voters’ interests in maintaining the traditional
definition of marriage and encouraging optimal, stable child-rearing environments that are
implicated by the overarching theme of federalism. 76
1. Affirming Alaskan voters’ right to decide how to define marriage
Defendants rely on the Supreme Court’s ruling in Schuette v. Coalition to Defend Affirmative
Action 77 to emphasize the “right of the citizens to vote and decide the critical issues affecting their
lives.” 78 Marriage is of particular interest to society as it is often the root or foundation of family
units that create and strengthen communities. It is not surprising that due to the importance and
impact of marriage, a state’s interest in regulating marriage within its boundaries includes the
power to determine, within constitutional bounds, what marriage is and who may enter into those
unions. 79 It is obvious that the government has a strong interest in supporting the democratic
process, which grants citizens the power to “seek a voice in shaping the destiny of their own times”
and to have a hand in changing the social institutions of which they are a part. 80
Smithkline, 740 F.3d at 482 (quoting Windsor, 133 S.Ct. at 2692-93).
Dkt. 31 at 24-27.
134 S.Ct. 1623 (2014).
Dkt. 31 at 15.
Windsor, 133 S.Ct. at 2691.
Bond v. United States, 131 S.Ct. 2355, 2364 (2011).
However, a state’s right to define marriage is not unbounded; a state may not exercise its
power to define marriage in a way that infringes upon individuals’ constitutional rights. 81 “Though
each faith, minister, and individual can define marriage for themselves, at issue here are laws that
act outside that protected sphere. Once the government defines marriage and attaches benefits to
that definition, it must do so constitutionally. It cannot impose a traditional or faith-based
limitation upon a public right without a sufficient justification for it.” 82 Many Alaskans may
personally wish to enshrine their own definition of marriage in the law. However, this case does
not concern whether any person or group finds same-sex marriage repugnant based on personal
moral or religious beliefs; the Constitution protects the right to express one’s personal beliefs and
values, but it also protects same-sex couples from laws that negatively impact their Constitutional
rights. 83 Even if a majority of citizens disapprove of homosexuality, an infringement on same-sex
couples’ constitutional rights “must be predicated on legitimate state concerns other than
disagreement with the choice the individual has made.” 84 The basic principle is that “fundamental
rights may not be submitted to vote; they depend on the outcome of no elections.” 85
The Supreme Court has consistently struck down state laws that regulate marriage in an
impermissible fashion, particularly when the regulation is one that withholds the right to marry
Loving, 388 U.S. at 11-12; see also Dkt. 31 (Defendants concede: “Where the citizens have
exercised their right to vote—their decision should not be overturned by the judiciary absent
compelling circumstances such as the violation of a fundamental right.”)
Bourke v. Beshear, 2014 WL 556729 at *10 (W.D. Ky. Feb. 12, 2014).
See Geiger v. Kitzhaber, 994 F.Supp.2d 1128, 1137-38 (D. Or. 2014).
Hodgson, 497 U.S. at 435.
W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
entirely for a particular group. For example, regardless of the majority’s beliefs, a state may not
refuse the right to marriage for an interracial couple, 86 nor for individuals that have not upheld
their child-support obligations, 87 nor for the incarcerated. 88 Even if many Alaskan citizens have
moral or religious sentiments that conflict with homosexuality, the mere “fact that the governing
majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason
for upholding a law prohibiting the practice.” 89
Homosexuals are “among the most stigmatized, misunderstood, and discriminated-against
minorities in the history of the world.” 90 Alaska’s denial of the benefits and dignity of marriage
for them only perpetuates this discrimination without legitimate grounds. Same-sex couples
comprise only a small portion of Alaska’s population, and “[m]inorities trampled on by the
democratic process have recourse to the courts; the recourse is called constitutional law.” 91 To
put it simply, “a primary purpose of the Constitution is to protect minorities from oppression by
majorities.... Thus, considerations of federalism cannot carry the day....” 92
Loving, 388 U.S. at 11.
Zablocki, 434 U.S. at 387-88.
Turner, 482 U.S. at 96-99.
Lawrence, 539 U.S. at 560 (“Moral disapproval of a group cannot be a legitimate
governmental interest under the Equal Protection Clause because legal classifications must not
be ‘drawn for the purpose of disadvantaging the group burdened by the law.’”) Id. at 583
(quoting Dept. of Agriculture v. Moreno, 413 US. 528, 633 (1973).
Baskin, 2014 WL 4359059 at *11.
Id. at *19.
Latta, 2014 WL 4977682, at *29.
Moreover, when assessing an equal protection challenge, regardless of the level of scrutiny
employed by the Court, the stated government interests must have a logical relationship to the law
in question. Even if the Court employed the lowest standard of review, it is illogical to say that
Alaska’s same-sex marriage laws are rationally related to serving the right of citizens to vote on
significant changes to the law. Alaska’s same-sex marriage laws governing the institution of
marriage have nothing to do with promoting or ensuring a citizen’s voting rights.
2. The preservation of the traditional definition of marriage
Defendants correctly argue that throughout our nation’s history, a “traditional” marriage has
typically been an agreement between one man and one woman. 93 However, “[a]ncient lineage of
a legal concept does not give it immunity from attack” under the appropriate standard of review. 94
Adherence to tradition is not a valid basis for taking away an individual’s constitutional rights,
particularly when experience reveals that the injustice no longer serves, or even acts as a detriment
to, the general welfare. 95 In regard to a parallel argument concerning tradition brought by the state
in Baskin, the Seventh Circuit explained:
The state’s argument from tradition runs head on into Loving v. Virginia, since the limitation
of marriage to persons of the same race was traditional in a number of states when the
Supreme Court invalidated it. Laws forbidding black-white marriage dated back to colonial
times and were found in northern as well as southern colonies and states. Tradition per se has
no positive or negative significance. There are good traditions, bad traditions pilloried in
such famous literary stories as Franz Kafka’s “In the Penal Colony” and Shirley Jackson’s
“the Lottery,” bad traditions that are historical realities such as cannibalism, foot-binding,
and suttee, and traditions that from a public-policy standpoint are neither good nor bad (such
Dkt. 31 at 26.
Heller, 509 U.S. at 326.
See Wolf v. Walker, 986 F.Supp.2d 982, 1019 (W.D. Wis. 2014), aff’d, Baskin, 2014 WL
4359059 (“The rejection of these inequalities by later generations shows that sometimes a
tradition may endure because of unexamined assumptions about a particular class of people
rather than because the laws serve the community as a whole.”).
as trick-or-treating on Halloween). Tradition per se therefore cannot be a lawful ground for
discrimination—regardless of the age of the tradition. 96
As previously discussed, the traditional notion of marriage as described by the Supreme Court
is comprised of two individuals that make the deeply personal choice to dedicate their lives to each
other. It is a union that acts as a benefit to society and is defined by commitment, intimacy,
autonomy, and personal dignity. Many same-sex couples, the Plaintiffs among them, desperately
wish to enter into such a legally valid lifelong relationship, and they devote substantial time,
energy, and money to have the state recognize their commitment.
While the state and its citizens may indeed have a legitimate interest in promoting certain
virtues, it does not follow that a law forbidding same-sex marriage has any relation to the status of
male-female marriage. Presented with unsupported arguments about the future effects of same-sex
marriage on traditional marriage, the Ninth Circuit stated:
Unsupported legislative conclusions as to whether particular policies will have societal
effects of the sort at issue in this case—determinations which often, as here, implicate
constitutional rights—have not been afforded deference by the Court. To the contrary, we
“retain an independent constitutional duty to review factual findings where constitutional
rights are at stake….” [T]here is no empirical support for the idea that legalizing same-sex
marriage would harm—or indeed affect—opposite sex marriages or relationships. 97
Just as in Latta, the Defendants have provided the Court with little more than uncorroborated
suggestions about the impact of same-sex marriage. Without persuasive factual findings to
evaluate, the Court finds that there is inadequate support for the contention that banning same-sex
marriages has any rational relationship to the preservation of traditional marriages.
Baskin, 2014 WL 4359059, at *14 (internal citation omitted).
Latta, 2014 WL 4977682, at *17, *18 (quoting Gonzalez v. Carhart, 550 U.S. 124, 165-66
Defendants further mention the notion that “it is legitimate for voters to believe that children
can prosper with a father and a mother in their lives—because they derive unique values from each
parent” and that the state seeks “to ensure that all children have the best chance to grow in a stable
environment by supporting families.” 98 Again, these contentions are unsupported by empirical
evidence. 99 As the Ninth Circuit found, “[r]aising children is hard; marriage supports same-sex
couples in parenting their children, just as it does opposite-sex couples.” 100
For the many same-sex couples with children in the United States today, permitting them to
enter into marriage encourages security and stability in their family and for their children. It is
estimated that 23% of same-sex couples in Alaska are raising children (biological, adopted, or
step-children), the third highest percentage in the nation. 101 Preventing these individuals from
participation in marriage places upon them unwarranted social, economic, and political burdens
and prevents them from obtaining the extensive benefits and protections that are provided to
families of opposite-sex couples. 102 Discussing the states’ arguments regarding procreation and
child-rearing, the Ninth Circuit in Latta found:
Dkt. 31 at 26.
See, e.g., “Lesbian and Gay Parenting.” (American Psychological Association),
http://apa.org/pi/lgbt/resources/parenting.aspx?item=6 (last visited October 11, 2014)
(“[E]vidence to date suggests that home environments provided by lesbian and gay parents are as
likely as those provided by heterosexual parents to support and enable children’s psychological
Latta, 2014 WL 4977682, at *22.
“Six Million American Children and Adults Have an LGBT Parent.” (Williams Institute,
UCLA School of Law, Feb. 2013), http://williamsinstitute.law.ucla.edu/wpcontent/uploads/LGBT-Parenting.pdf.
See Plaintiffs’ affidavits at Dkts. 21-26.
In extending the benefits of marriage only to people who have the capacity to procreate,
while denying those same benefits to people who already have children, Idaho and Nevada
materially harm and demean same-sex couples with children…. Denying children resources
and stigmatizing their families on this basis is “illogical and unjust.”… It is
counterproductive, and it is unconstitutional.103
A more effective way to support the state’s interest in building strong, supportive families with
children would be to allow same-sex couples the same public resources as heterosexual couples
have for creating and nurturing a family. 104 There is no sensible reason to deny same-sex families
the same advantages and benefits already given to opposite-sex couples.
In sum, any relationship between Alaska’s same-sex marriage laws and the government
interests asserted by Defendants is either nonexistent or purely speculative. Alaska’s same-sex
marriage laws are a prime example of how “the varying treatment of different groups or persons
is so unrelated to the achievement of any combination of legitimate purposes that we can only
conclude that the legislature’s actions were irrational.” 105 Refusing the rights and responsibilities
afforded by legal marriage sends the public a government-sponsored message that same-sex
couples and their familial relationships do not warrant the status, benefits, and dignity given to
couples of the opposite sex. This Court finds that Alaska’s same-sex marriage laws violate the
Latta, 2014 WL 4977682, at *25 (internal citation omitted) (quoting Plyler v. Doe, 457 U.S.
202, 220 (1982)).
See, e.g., Press Release, American Academy of Pediatrics, American Academy of Pediatrics
Supports Same Gender Civil Marriage (March 21, 2013) (available at: http://www.aap.org/enus/about-the-aap/aap-press-room/Pages/American-Academy-of-Pediatrics-Supports-SameGender-Civil-Marriage.aspx) (“The American Academy of Pediatrics (AAP) supports civil
marriage for same-gender couples—as well as full adoption and foster care rights for all parents,
regardless of sexual orientation—as the best way to guarantee benefits and security for their
Vance v. Bradley, 440 U.S. 93, 97 (1979).
Due Process and Equal Protection Clauses of the Fourteenth Amendment because no state interest
provides “exceedingly persuasive justification” 106 for the significant infringement of rights that
they inflict upon homosexual individuals.
Any state interests identified by Defendants are insufficient for Alaska’s same-sex marriage
laws to pass constitutional muster under due process or equal protection. Plaintiffs’ Motion for
Summary Judgment at Docket 20 is GRANTED.
With this ruling, the Court hereby DECLARES that Alaska’s same-sex marriage laws are
unconstitutional for violating the Due Process and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution.
The Court IMMEDIATELY ENJOINS the state of Alaska, including state officers,
personnel, agents, government divisions, and other political entities, from enforcing Alaska
Constitution Article 1, Section 25 and Alaska Statute Sections 25.05.011 and 25.05.013 to the
extent that the laws prohibit otherwise qualified same-sex couples from marriage and refusing to
recognize lawful same-sex marriages entered in other states.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 12th day of October, 2014.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
Virginia, 518 U.S. at 531.
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