I n January the Department of Law filed a brief with the Alaska Supreme Court stating that it would take a year to implement the court's order to provide health and retirement benefits to same-sex couples. A Juneau Empire editorial dated Jan. 8 concluded that, given the governor's expressed disappointment, coupled with the timeframe identified in the Department of Law's legal brief, Gov. Murkowski did not respect the court's decision and that the governor's "ideology has trumped his respect for the law." The opinion's conclusion that the state is stalling and that the governor is seeking to circumvent the law is unfounded.
In 1998, while the governor was still serving in the U.S. Senate, the Alaska Legislature mustered the two-thirds vote in the Alaska House and Senate required to amend the state's constitution to define a valid marriage in this state as being between one man and one woman. The amendment was approved by a majority of the voters.
In 1999 the plaintiffs filed this lawsuit. The issue about entitlement to benefits was briefed and argued before the Alaska Supreme Court on Dec 16, 2002. The court reached its decision on Oct. 28, 2005. It had this matter under advisement for nearly three years and three full legislative sessions.
The Empire's editorial concludes that making the necessary changes to the law "shouldn't be a difficult task." This conclusion fails to consider the time it took the court to issue the ruling and pays short-shrift to the avalanche of legal change that must necessarily accompany this ruling.
Given the need for involvement at the legislative and administrative levels, the federal tax implications, the costs to the budget and the fact that for many affected employees the changes must be achieved through the collective bargaining process, it is realistic that the state needs a year to implement the required changes.
The state's highest court has issued its decision and the Department of Law will respect that ruling. But changing benefits takes more than a snap of the fingers.
The Alaska Civil Liberties Union and others (not the Juneau Empire) suggest that since the city of Juneau and the university could have made the necessary changes in a few months that the state should be able to do so as well. This claim misleads the public. The university and Juneau only provide medical coverage to same-sex partners of active employees. They did not have to deal with the complexities of health trusts provided through multiple collective bargaining agreements, or statutes that provide tax-qualified plans for three large retirement systems. The state does have to deal with these issues, and must do so in a manner that complies with the collective bargaining process and preserves the tax-qualified status of retirement systems that benefit many thousands of employees and retirees.
Back in October, when the court's decision was issued, many people, including legislators and the governor, stated that they were unhappy with this decision in light of the marriage constitutional amendment referred to above. The administration and the Legislature are free to contemplate seeking a constitutional amendment (the constitution itself provides the process on how it can be amended) to overrule the decision made by the court's order in a manner that is consistent with the policies they uphold and which they believe are consistent with the will of the voters. If they do so, it will still require a two-thirds vote in both houses of the Legislature and a majority vote by the public.
This is not a "circumvention of the law." This is an exercise of the constitutional process.
David W. Mrquez was appointed attorney general for the state of Alaska on March 31, 2005.