Federal Judge Strikes Down Alaska’s Same-Sex Marriage Ban

And Alaska makes 30.


In an atypical Sunday release, a Federal Judge in Alaska has handed down an opinion striking down that state’s ban on same-sex marriage:

A judge struck down Alaska’s laws banning marriage for same-sex couples on Sunday and ordered government officials to immediately recognize their rights.

U.S. District Court Judge Timothy Burgess said the state deprived same-sex couples their rights to due process and equal protection under the laws. Because the facts of the case were not in dispute, he immediately struck down the unconstitutional laws and ruled in favor of the five gay couples who filed the lawsuit.

Since the 1998, Alaska has defined marriage as between one man and one woman through a state constitutional amendment approved by 68% of voters. State law also specifically says out-of-state marriages of same-sex couples will not be recognized in Alaska.

Though the ban was approved by a majority of voters, Burgess, appointed to the bench in 2005 by President George W. Bush, said it was the job of the Constitution to protect the fundamental rights of minorities. Fundamental rights have long been understood to include personal choices about marriage and family, he said, and same-sex couples’ marriages should be no different.

“While homosexuality and the union of same-sex couples through marriage may be against the beliefs or beyond the moral parameters of some Americans, the core purpose of the 14th Amendment is to protect and individual’s freedom,” he said.

His ruling goes on to call the ban discriminatory, even if supporters said they only hoped to protect “traditional marriage.”

“Adherence to tradition is not a valid basis to take away an individual’s constitutional rights, particularly when experience reveals that the injustice no longer serves, or even acts as a detriment to, the general welfare.”

Supporters of the ban had argued that allowing same-sex couples to marry would harm the marriages of opposite-sex couples. They also said marriages for same-sex couples would not provide an appropriate environment to raise children.

Those claims had no evidence to back them up, the judge said.

“For the many same-sex couples with children in the United States today, permitting them to enter into marriage encourages security and stability in the family and for their children,” he said.

Given the ruling from the Ninth Circuit, which has jurisdiction over Alaska’s Federal Courts, this ruling is not all that surprising, although its worth noting that Judge Burgess’s opinion went beyond a “the Ninth Circuit said this, so I have to follow it” argument and proceeded to address the arguments made by the state. In doing so, he went further than some of his fellow Judges and found that the ban violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. While that may turn out to be academic at this point, it could be important in the future as it sets forth the legal basis for challenges to discrimination based on sexual orientation even in the absences of specific State or Federal law bans on the practice. This would seem to be especially true in the Ninth Circuit, which has already adopted a heightened scrutiny test for discrimination based on sexual orientation.

Alaska’s Governor Scott Parnell, who is in the middle of a tougher than expected battle for re-election against Independent Bill Walker, has announced his intentions to appeal this decision, but the outcome of any such appeal is essentially certain. The Ninth Circuit would uphold Judge Burgess’s decision for the same reasons it recently struck down the laws in Idaho and Nevada. The Supreme Court would decline to hear any appeal for the same reasons it declined to hear the other cases before it last week. In the meantime, though, there is no stay on same-sex marriages going forward in Alaska and, unless one is granted by either the Ninth Circuit or the Supreme Court, which is unlikely, they will continue to go forward as the  case makes its way through the appellate process. This means that Alaska is the 30th state in which same-sex marriage is legally recognized.

Here’s the opinion:

Hamby Et Al v. Parnell Et Al by Doug Mataconis

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.