Getting past the same-sex benefit impasse

The only way to deny benefits would be to pass an amendment that would violate the federal equal-protection clause

Posted: Thursday, January 04, 2007

The Alaska Supreme Court's decision to order implementation of a same-sex partner benefit plan is the latest development in a story that has been going on for quite a while. The issue of accepting the existence of homosexual couples in society has been debated in every state in the Union. In most jurisdictions, including Alaska, the upshot has been amending the state constitution to define marriage as being an exclusively heterosexual institution. But in Alaska, this action on the part of the voters has not ended the debate.

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Because only the legal spouses of public employees are entitled to health insurance and retirement benefits in Alaska, a group of same-sex couples found a novel way to challenge the legal status quo. An unmarried heterosexual couple wanting to extend the public-employee partner's benefits to the nonpublic-employee partner can get married, and the benefits are extended. Because marriage exists only between a man and a woman in Alaska, this avenue isn't available to same-sex couples. Even non-attorneys are probably aware of the equal protection clause of the U.S. Constitution. This constitutional language has been used to help move society past its blatantly racist days since the Civil War. The Alaska Constitution also has an equal protection clause, and the state Supreme Court has unanimously interpreted this language to rule the denial of benefits to same-sex partners of public employees illegal.

Many of the Alaskans who backed the amendment defining marriage as an exclusively heterosexual institution did not realize it would not prevent the accrual of benefits by homosexual Alaskans. This would require more far-reaching language. I'm guessing that fewer Alaskans would support an amendment that authorized the denial of benefits to a specific group, even if that group were homosexuals. Even if Alaskans were to vote to add this language, there's a good chance that the U.S. Supreme Court would find it in violation of the federal equal protection clause.

I take at face value the words of my fellow Alaskans that they don't hate gays and lesbians. They just want marriage to be the way it has always been. As marriage is a creature of common and ecclesiastical law, there is certainly a reasonable argument to be made there. Any one who knows me knows that I don't agree with it, but I don't find it offensive to discuss alternatives to gay marriage. I'm much more interested in getting past the current impasse.

Contract law has at times been very powerful in our nation's history. It was used by a business-friendly court at the end of the 19th and early part of the 20th centuries to strike down labor laws, under the theory that an individual had to be able to strike a deal on his or her own terms to provide for the necessities of life. A comparable rationale is behind the domestic-partnership legislation that has cropped up in state houses across the country in recent years. If two people - whether a "cohabiting, economically intertwined couple" of whatever gender, or siblings, or a parent and child, or just really good friends - want to contract to share things they own, to give one another rights and duties in case of a medical emergency, or to do anything else that doesn't involve what happens in the bedroom, I think our legal system and larger society will be disinclined to stop them with legal absolutes like constitutional amendments. As anyone who has paid a good attorney to create legally sound set of documents can tell you, it's an arduous enough task without those in elected office raising the bar to make it impossible.

I have heard many people say they are pleased with Gov. Sarah Palin's decision to veto the Legislature's bill preventing the provision of same-sex benefits and upset that she signed into law the bill calling for a statewide advisory vote. I think she did the right thing given who she is, obeying the law and her conscience. Talis Colberg, our new attorney general, gave her good legal advice, and she duly vetoed it. While I'd just as soon not spend a million dollars on an advisory vote next April, I can see why those who oppose same-sex benefits want to have one. Until the Alaska Constitution is changed, it will remain illegal to deny benefits to homosexual public employees in Alaska. But a vote to gauge the people's will is something that's been done before, and I'm sure it will be done again.

What will be most interesting in the coming legislative session is any effort to place a constitutional amendment on the ballot at the next general election. That will require a two-thirds vote of both the House and Senate, which the majority didn't have last fall during the special session. Now there's a bipartisan majority in the Senate, most of whose members have publicly stated their opposition to a benefit-denying amendment. So one wonders if the resolutions proposing the amendment will even be scheduled for hearings in all of their committees of referral.

I know that Alaskans who disagree on same-sex marriage can find some, even if very limited, common ground. Those who really think they're going to live in an Alaska without any visible gays and lesbians will probably never be at the table, and those who expect Alaska to be like the Netherlands in 10 years are unlikely to participate either. It's up to the rest of us to try to work together and get past this issue, because there are so many more out there of at least equal importance that require our attention.

• Benjamin Brown is a lifelong Alaskan, an actor, attorney and bartender.

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