Lin Davis, of Juneau, Alaska, shown wearing an orange rain coat, holds signs supporting gay marriage during a news conference Friday, Oct. 10, 2014, outside the federal courthouse in Anchorage, Alaska. A federal judge on Friday heard arguments from five gay couples seeking to overturn the state's ban on gay marriage. (AP Photo/Mark Thiessen)

Lin Davis, of Juneau, Alaska, shown wearing an orange rain coat, holds signs supporting gay marriage during a news conference Friday, Oct. 10, 2014, outside the federal courthouse in Anchorage, Alaska. A federal judge on Friday heard arguments from five gay couples seeking to overturn the state's ban on gay marriage. (AP Photo/Mark Thiessen)

Judge considers fate of Alaska gay marriage ban

  • By Mark Thiessen
  • Saturday, October 11, 2014 8:56pm
  • News

ANCHORAGE, Alaska — A federal judge in Alaska promised a quick decision after hearing arguments Friday to overturn the first-in-the-nation ban on gay marriages.

Five gay couples sued the state to strike down the constitutional amendment approved by voters in 1998 that defined marriage as being between one man and one woman. They say it violates their U.S. constitutional guarantee of due process and equal protection.

Arguments for the plaintiffs were bolstered Monday when the U.S. Supreme Court refused to intervene in the issue, making gay marriage legal in a number of states.

The 9th Circuit Court of Appeals, to which Alaska belongs, the following day struck down similar bans in Idaho and Nevada. Each side in the Alaska case was given 30 minutes to present its case. The lead attorney for the plaintiffs, Allison Mendel, said she anticipated using only a little bit of that time and would save the remainder for rebuttal.

“Are you anticipating the landscape is going to change while we’re talking?” joked U.S. District Court Judge Timothy Burgess.

“I wouldn’t be surprised,” she responded.

Mendel said the 9th Circuit’s decision in the Nevada case set the precedent on equal protection within the circuit. The Nevada decision, she said, “is controlling on this court in every respect.”

She added of the state’s ban on gay marriage: “I think you can reach no other conclusion this is impermissible discrimination under the equal protection clause.”

Assistant Alaska Attorney General Bill Milks argued the ban was put in place by voters and the Legislature, and the state has every intention of defending the ban.

“The state of Alaska’s position is that this is a law that was democratically passed by voters and the Legislature,” he said. “We don’t think there is a fundamental right to same-sex marriage.”

But under direct questioning from Burgess, Milks acknowledged that it appeared the Nevada decision rules this case. All but acknowledging the state would not win the case, Milks twice urged Burgess to issue a stay if the decision is, indeed, for the plaintiffs. He cited uncertainty and legal confusion in rulings from other states, including gay couples who were allowed to marry in Utah before the decision was ultimately put on hold. The Supreme Court’s refusal to step in on Monday allowed gay marriages to begin once again in Utah.

Milks said the “importance of having a measured, orderly process” supported a stay.

The state had pinned its hope on Idaho’s appeal of the 9th Circuit decision.

But Mendel informed the court that the U.S. Supreme Court lifted its stay on gay marriages in Idaho while the Alaska case was being heard, drawing a round of applause in the courtroom. So many people wanted to watch the proceedings that another courtroom with a live video feed was set up for those who couldn’t get seats at the federal courthouse in Anchorage. The hearing was also simulcast live to federal courthouses in Juneau and Fairbanks.

“We love Alaska, and we’re not leaving. It’s only fair that our marriage is recognized,” said Susan Tow, who is a plaintiff along with her partner Christina LaBorde.

Other plaintiffs Matthew Hamby and Christopher Shelden, who were married six years ago, also spoke during a news conference after the hearing.

“We’re really looking forward to going to a bunch of friends’ same-sex weddings here in our home state in short order,” Hamby said.

Shelden said being able to marry was something he could never conceive of while growing up. The last few years have “been a wonderful ride for all of us,” he said before kissing Hamby.

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