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Alaska judge to decide fate of same-sex marriage ban

By Kate McPherson Photojournalist: Emily Landeen - 2:34 PM October 10, 2014

The future of Alaska’s same-sex marriage ban is in the hands of U.S. District Court Judge Timothy Burgess, who heard arguments Friday in a case brought forward by five Alaska same-sex couples.

Four of the couples married in other states and want their union recognized in Alaska, while a fifth couple waits and hopes that Burgess will legalize same-sex marriage so they can marry in the state.

If Burgess decides that Alaska’s ban is unconstitutional, lives will be changed.

“We get to get married, I get to marry the person that I love,” said Courtney Lamb, standing outside of the Anchorage Federal Building with her partner, Stephanie Pearson.

“We’re excited, hopeful for the outcome,” the couple said.

Burgess said this case deals with a “complex and fast-moving area of law.”

He’s referring to a Tuesday decision by the 9th Circuit Court of Appeals, which legalized same-sex marriage in Nevada and Idaho. That court has jurisdiction in Alaska and impacts how Burgess makes his decisions.

Lawyers for the five Alaska couples argue that stopping them from getting married, and not recognizing lawful marriages entered into in other states, violates the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

“Marriage is a right not dependent on the type of person you are,” said Allison Mendel, one of three lawyers in court representing the same-sex couples pro bono.

Representing the State of Alaska, Assistant Attorney General Bill Milks argued that “social policy should not be taken away from the democratic process,” referring to the 1998 decision by voters to amend Alaska’s Constitution to ban same-sex marriage.

Mendel argued that just because the same-sex marriage ban was enacted by voters “does not save it from constitutional scrutiny.”

“The law can’t stand unless there is a legitimate purpose served,” Mendel said.

Milks argued that up until recently, and traditionally, marriage has been between a man and a woman, adding that same-sex marriage wasn’t around when the Fourteenth Amendment was written.

Milks conceded the state is in an “awkward position” because the opinion of the 9th Circuit Court of Appeals “is a direct precedent” and controls Alaska’s case now.

“We were all set to argue our points but then Tuesday happened,” Milks said.

Milks urged Burgess not to make a decision based on the 9th Circuit Court of Appeals’ decision to legalize same-sex marriage in Idaho and Nevada, because Idaho appealed to the Supreme Court to delay the implementation.

“There is legal confusion,” said Milks, who asked Burgess to stay — or delay — the ruling because of uncertainty in the Idaho case.

Mendel argued that Alaska’s plaintiffs shouldn’t have to wait for the Supreme Court to act on a separate case.

“Plaintiffs are entitled to decision,” Mendel said.

However, while Alaska’s hearing was taking place Friday, the Supreme Court announced its refusal of Idaho’s appeal. Mendel got out of her seat and announced this news to Burgess. There were gasps of surprise and applause from the courtroom. Burgess told the court he would consider that in his decision, before calling the hearing to a close.

After the court hearing, Heather Gardner, a lawyer for the plaintiffs, spoke to the crowd.

“The individual rights of people are all the same, it’s not equal protection unless everyone is protected equally and that’s key to this,” Gardner said.

Matthew Hamby and his partner Christopher Sheldon, who is a 20-year employee of the state, are also plaintiffs in the case. The couple was married in Canada in 2008 and renewed their vows in Utah in 2013. Court documents indicate Hamby and Sheldon have had trouble obtaining health insurance in Alaska — health insurance extended by the state to other married couples.

“I think we are fortunate in America that we have protections for minorities and even voter initiated things like this constitutional amendment [Alaska’s ban] are still subject to the U.S. Constitution,” Hamby said.

“I do think that the ability of Alaskans to decide their government is an important thing; however, if the decisions that they make are infringing upon the constitutional rights of other Alaskans then those laws can’t stand,” Sheldon said.

Tracey Wiese and her wife Katrina are also hopeful Burgess will overturn the ban on same-sex marriage and recognize marriages entered into in other states.

“It is such a basic fundamental human right to be and marry the person that you love and choose, so to have that decision made for you by voters doesn’t sit right with me,” Wiese said.

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