An Anchorage judge has found the state's proposed rules on benefits for same-sex couples too stringent.
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Anchorage Superior Court Judge Stephanie Joannides earlier this month also found the state's view of an Alaska Supreme Court decision on the types of benefits to be offered too narrow.
The Alaska Department of Administration will hold public hearings in Juneau and Anchorage next week to take comments on the proposed regulation.
The state has never had a policy extending partner benefits to same-sex couples, but an Alaska Supreme Court ruling last fall required it establish one before the end of the year. Following an action filed by the American Civil Liberties Union and nine Alaska couples, the high court ruled that because the state prohibits same-sex couples from marrying, denying gay and lesbian couples rights extended to married couples deprives them of equal protection guaranteed under the Alaska Constitution.
For more on the proposed regulation of benefits for same-sex partners of state employee, check out www.state.ak.us/drb, number 2 AAC 38.
As drafted, the regulation would require same-sex partners to swear they have been in "exclusive, committed and intimate relationships" for at least a year.
The judge said the ACLU argued that, both in number and type, the proposed regulations impose requirements on same-sex couples that are not imposed on married couples. Married couples, for example, are not required to file annual affidavits reaffirming they are still married, as the proposed rules would require of employees in same-sex relationships.
"The state may have a legitimate interest in ensuring that the government is aware when domestic partnerships end so that it does not pay survivor benefits to the wrong people," the judge wrote. "Requiring same-sex partners to file annual affidavits reaffirming their relationship, where they have already attested to the long-term and intimate nature of that relationship, seems excessively burdensome and not substantially related to administrative efficiency."
She found it possible that the requirement actually could hinder administrative efficiency.
Michael Macleod-Ball, executive director of the ACLU of Alaska, said he is confident a policy will be developed before the end of the year, but plans to continue the suit if it is discriminatory.
"Anything that creates a different set of standards for same-sex partners who have established a roughly equivalent relationship as a married couple is discriminatory," Macleod-Ball said.
Assistant Attorney General Virginia Ragle argued in court filings that the proposed regulations fulfill the high court's mandate, even though it presents differences in the way same-sex couples will be treated.
"The Alaska Supreme Court did not order the state to treat all lesbian and gay couples in exactly the manner the state treats married couples for purposes of eligibility for employment-related partner benefits," she wrote for the judge in response to the plaintiff's objections to the draft.
Those objections reflect "a difference in opinion," she wrote. The high court provided that the state was free to implement the mandate in many different ways. By arguing differences are constitutional questions, they are trying to shape the policy as they want it, Ragle added.
"The cumulative effect of all these criteria may be too burdensome even where individual criteria are reasonable," Joannides wrote.
The judge pointed out that the plaintiffs supported a provision in the Anchorage municipal policy proposal, which also is in dispute in the ACLU suit. It would allow same-sex couples to file affidavits with a state registry with information supporting their relationships and would file changes in their status with the state registry.
Macleod-Ball said the proposal appears to offer broader benefits to married couples. Time off is available to state employees in the event of the death of an immediate family member, which presumably includes a spouse but doesn't specifically include a same-sex domestic partner. Likewise, state rules provide that a spouse will receive money earned by an employee who dies before being paid.
"The parties are on new ground here," Ragle wrote. "There certainly is no requirement ... that the state demonstrate that these criteria are the least restrictive possible."
Ragle also wrote that she believes all of the couples that brought the action against the state would be able to meet the guidelines. Regardless, "There are very likely a wide range of options that will be considered constitutional," she wrote.
For example, the plaintiffs argue that each of the couples who brought the action shared an intimate relationship. Requiring they attest to their relationships being exclusive would not violate privacy rights because the affidavits they sign will be confidential as a matter of state law.
Macleod-Ball said that among the nine couples named in the suit, one of the partners is deceased. Even if the living couples were able to meet the proposed criteria, the ACLU is arguing for the rights of all state employees in same-sex relationships.
Tony Carroll can be reached at firstname.lastname@example.org.