The Alaska Supreme Court has issued a sweeping decision based upon the state’s equal protection clause, ruling that it was unconstitutional for the state and local governments to offer employees who were married to a person of the opposite sex benefits to their spouses, such as health insurance, without extending the same benefits to employees who had same sex partners. The decision, Alaska Civil Liberties Union v. Alaska, is particularly striking because Alaska voters in 1998 enacted a constitutional amendment to limit marriage to opposite sex couples.
Alaska’s equal protection clause provides “that all persons are equal and entitled to equal rights, opportunities, and protection under the law.” As a threshold matter, the court had to consider whether the State’s Marriage Amendment trumped the equal protection clause in this case. Alaska’s high court held that the constitutional ban on gay marriages did not preclude gay couples from the right to be equally treated with respect to employment benefits. The court said, “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.” Indiana’s proposed constitutional ban on gay marriages is more broadly written than the Alaska Marriage Amendment to include benefits.
In determining whether the denial of same sex benefits violated the state’s equal protection clause, the court applied the lowest level of scrutiny standard, which required the plaintiffs to demonstrate that the challenged law treated similarly situated persons differently. The plaintiffs contended that the benefits programs discriminated between same sex couples and opposite sex couples, while the defendants urged that their benefits programs differentiated between marital status and not sexual orientation. Most courts reviewing these cases have agreed with the latter view.
But the Alaska court found that because same sex couples were legally barred from marrying in order to receive the added health benefits, it found that they are treated differently than the similarly situated class of opposite sex couples. As such, it was facially discriminatory. The court said, “When a ‘law by its own terms classifies persons for different treatment,’ this is known as a facial classification. 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.’”
Having determined that the law was facially discriminatory, the court then applied a three-part sliding scale analysis to determine the equal protection claims using the lowest level of scrutiny, which took into consideration the following: 1) the state’s interest in impairing the constitutional interest; 2) the purposes survived by the challenged law and 3) the state’s interest in furthering the goals undertaken by the law. The state argued that its interest in limiting benefits to opposite sex couples included, controlling cost of its benefit programs, administrative efficiency and promoting traditional marriage. While the court agreed that “[t]he governmental interests of cost control, administrative efficiency, and promotion of marriage [were] legitimate, . . . [it held that] the absolute denial of benefits to public employees with same-sex domestic partners [was] not substantially related to these governmental interests.”
As a consequence of this decision, proponents of marriage amendments will be emboldened to include the broader language encompassed by amendments adopted by such states as Ohio and is proposed in Indiana. Unlike the Alaska Marriage Amendment, which simply defined marriage as between one man and one woman, Indiana’s proposed constitutional amendment includes this additional language: “This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.” Arguably, this added language would foreclose a similar challenge in Indiana as brought in Alaska based upon the state’s equal protection clause, if Indiana’s proposed constitutional ban on gay marriages is adopted.
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