Hearing Tomorrow in Alaska's Gay Marriage 'Catch-22' Could Impact Other States that Tie Benefits to Marriage

ANCHORAGE - An Alaska state court will hear arguments tomorrow in a lawsuit highlighting the "Catch-22" of a state banning gay marriage and then saying marriage is the only way its employees can get health, pension and insurance benefits for their partners. 

The American Civil Liberties Union filed the lawsuit in state court in 1999, shortly after Alaska's voters passed a Constitutional amendment barring 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. 

"It's patently unconstitutional for a state to say you have to be married in order to get benefits, while at the same time refusing an entire class of people the option of getting married," said Ken Choe, an ACLU Lesbian and Gay Rights Project staff attorney, who will help argue the case this week in Anchorage. "It's a classic 'Catch-22,' and something's got to give." 

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 a lesbian couple who are adoptive parents of three children who require full-time care because of significant emotional and psychological needs caused by their background of abuse. One of the mothers, 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 women 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 state employee could cover her partner on her state health insurance, she 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.. 

Another lesbian couple, together for 11 years, are represented by the ACLU, as well. One of the women is a Community Development Specialist with the state Department of Labor in Juneau. Her partner works for a private employer and is currently prohibited from sharing the state health benefits. As a result, she paid $20,000 out-of-pocket for dental work that would have been covered under her partner's state health insurance. 

"These situations illustrate a fundamental inequity in Alaska - and in many other states," Choe said. "It's difficult to see how anyone could seriously say that this is equal treatment - and equal treatment is what the Alaska Constitution requires." 

By discriminating based on sexual orientation and gender, Alaska's employment policy violates the state Constitution's guarantee "that all persons are entitled to equal rights, opportunities and protections under the law." 

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. "This lawsuit directly affects only Alaska, but other states' constitutions have similar provisions for equal protection under the law - so a victory will put other states on notice," Choe said. 

The Alaska case is just one facet of marriage-based discrimination targeted by the ACLU - which brought the first-ever lawsuit seeking a marriage license for a gay couple in 1972. Currently, the ACLU is preparing to file a lawsuit to overturn a Constitutional amendment passed last year by Nebraska's voters, prohibiting the state from recognizing marriage, civil unions or domestic partnerships between people of the same sex. 

In Anchorage, the ACLU's Choe, along with other attorneys on the case and Alaska Civil Liberties Union Executive Director Jennifer Rudinger, will be available to the media following court arguments. ACLU Cooperating attorney Allison Mendel, of Mendel & Associates in Anchorage, will argue the case with Choe Tuesday.