My turn: Court decision not a 'no-brainer', not reason to change constitution

Posted: Wednesday, November 09, 2005

As the former state attorney who wrote the briefs and argued the "same-sex benefits case" before the Alaska Supreme Court, I must take exception to the Empire's assertion, in Sunday's editorial, that the court's decision in that case was a "no-brainer." Having decided to grant benefits to dependents of state employees, not just the employees themselves, the Alaska Legislature for fiscal reasons had to draw a line limiting dependents who would be covered. It chose spouses and children - an easily administered line, and one that would seemingly limit "dependents" to those with a demonstrably close relationship to the employee. Note that this legislative decision was made nearly 50 years ago, when most gays and lesbians were still in the closet, and there were very few same-sex couples; for that reason the Legislature cannot be accused of making the decision because of a hatred of gays and lesbians. Note also that the spousal requirement for benefits also adversely affects far more opposite-sex couples than same-sex couples, simply because, as census data shows, there are far more unmarried opposite-sex couples than same-sex ones.

When, as in this case, a legislative classification (spouses versus non-spouses) affects only economic benefits, our Supreme Court has repeatedly said that the classification does not have to be perfect. In other words, the classification may seem to operate unfairly on certain individuals or groups without being unconstitutional. This reflects the fundamental doctrine of separation of powers - the Legislature makes the laws, under our constitution; those laws are presumed to be constitutional. The courts do not sit as a super-legislature to void laws whose wisdom the courts question. I believe, but the Supreme Court didn't, that the incidental adverse effect of the marriage requirement on same-sex couples, who may not legally marry, was an incidental effect of a necessary classification, and did not justify the result reached by the court. Though in recent years several appellate courts in other states (Oregon, Vermont and most obviously Massachusetts) have reached the same result as the Alaska Supreme Court did, there are probably more decisions rejecting that result.

That said, however, I firmly agree with the Empire that the Supreme Court's decision, even if seen as erroneous, does not warrant an effort to amend the constitution. As your front-page article on Sunday discussed, Alaska is still seen as having one of the best state constitutions in the country, even 50 years after its adoption. One reason for this is that people don't run out to amend our fundamental document every time that the courts do something they don't like. As your editorial noted, the Supreme Court's decision in no way constitutes some sort of undercutting of the institution of marriage. It also will not place a significant financial burden on the state, just because there are not that many state employees living in same-sex relationships.

In a way, this case is similar to the U.S. Supreme Court cases that barred prayer in the schools and that ruled that flag-burning was protected by the First Amendment. Obviously many people were greatly offended by both of these decisions. But I believe that a truly reflective person (as opposed to a politician trying to score cheap political points) would have to admit that whatever harm may be caused by the absence of prayer in the schools, or the burning of flags at political demonstrations, is not so great as to warrant amending the constitution. Efforts are still being made regularly to amend the U.S. Constitution so as to allow prayer and to prohibit flag burning; fortunately, these efforts, which I believe to be purely politically motivated, have not succeeded. I hope that the same holds true of any effort to amend the Alaska Constitution in response to this case.

• John Gaguine is an attorney who retired from the Alaska Department of Law after 15 years as an assistant attorney general. His primary client for most of that time was the Alaska Division of Retirement and Benefits.

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