ANCHORAGE, AK - The American Civil Liberties Union filed an appeal today in the Alaska Supreme Court in a case challenging the ""Catch-22" of the state banning gay marriage and then saying marriage is the only way its employees can get benefits for their partners.
Also today, an uninsured stay-at-home mother filed a friend-of-the-court brief in the case, saying she cannot get health benefits through her same-sex partner's job as a public employee - but was denied Medicaid benefits because the government assessed her need as though the women were married.
""I need health insurance - which I can't get from my partner's taxpayer-funded employer because we aren't married and I can't get from the Medicaid 'safety net' because we're treated like we are married,"" Mari Billington said today. ""I want our state Supreme Court to hear exactly how this affects real families - how it affects my family.""
The ACLU initially filed the lawsuit in state court in 1999, shortly after Alaska's voters passed a Constitutional amendment barring state recognition of gay marriage. While the lawsuit does not seek to invalidate that initiative, the ACLU says that in light of the state prohibition, using marriage as the litmus test for benefits constitutes discrimination based on sexual orientation and gender, thus violating the state Constitution. The Alaska Constitution guarantees ""that all persons are entitled to equal rights, opportunities and protections under the law.""
""It's patently unconstitutional for a state to say you have to be married in order to get benefits, while at the same time denying gay and lesbian couples the option of marrying,"" said Ken Choe, an ACLU Lesbian and Gay Right Project staff attorney handling the case.
Last November, an Alaska Superior Court judge ruled that the benefits policy does not discriminate because it treats unmarried straight couples no differently than it treats unmarried gay people. Jennifer Rudinger, Executive Director of the Alaska Civil Liberties Union, said the judge's reasoning ""defies all logic and common sense -- of course the state discriminates against gay couples when it conditions benefits on a status that gay couples cannot attain.""
The ACLU's clients in the case are nine lesbian or gay state or municipal employees and their partners who are barred from sharing the health, pension and insurance benefits that their straight counterparts enjoy.
They include the adoptive parents of three children who require full-time care because of significant emotional and psychological needs caused by their background of abuse. One parent, a state employee, was eventually fired from her job because she needed to be home to care for the children and could only work part-time. When her insurance ran out, she had to take a job in order to have health coverage, and with neither parent home the children's behavior worsened.
Together with the children's treatment team, the couple made the difficult decision that residential care was the best option for two of the three children in light of the couple's inability to be home with them. If the government employee could cover her partner on her state health insurance, her partner could stay at home to care for the children. Instead - simply because the women are lesbians and therefore unable to receive equal benefits - two of their children are institutionalized in Montana.
Billington, the stay-at-home-mother who filed a brief in the case today, said she is looking for work again but has no guarantees that she'll get insurance through a new job. Late last year, she paid $850 out-of-pocket - and faced paying thousands of dollars more - when she had a medical emergency.
""I was terrified. For a while we thought they'd have to do surgery, which would cost thousands of dollars,"" she recalls. ""When I tell other moms in our daughter's play group about all of this -- and about how I can neither get insurance through my partner's job nor through the 'safety net' -- they're shocked. I have to believe that the state Supreme Court will correct this inequity.""
As an alternative to making marriage the sole determinant for benefits, the ACLU said government employers could make domestic partner registration or an affidavit of domestic partnership an alternative criterion for benefits. Domestic partnership is increasingly used by private employers, and a growing number of governments have also begun extending benefits to employees' domestic partners.
Currently, 35 states have laws that limit recognition of marriage to straight couples. Like Alaska, most of these states tie government employees' partner benefits to marriage.
The case is Alaska Civil Liberties Union, et al. v. State of Alaska and Municipality of Anchorage. Attorneys on the case include Ken Choe at the National ACLU's Lesbian and Gay Rights Project in New York and Allison Mendel of Mendel & Associates in Anchorage.