"Proposing an amendment to the section of the Constitution of the State of Alaska relating to marriage. "

Senate Joint Resolution 20 is presented to allow the people to address a fundamental question that has been the subject of a number of court cases dating back to the early 1990s. These cases challenged Alaska’s right to reserve marriage to the union of one man and one woman and thereby to restrict the rights, benefits, obligations, qualities and effects of marriage to legally married Alaskans.

The legislature believed the matter was settled in 1996 when it passed what is commonly called the Alaska Defense of Marriage Act. ¹  This Act provided that in Alaska a marriage is between one man and one woman. Furthermore, the Act specified that Alaska would not recognize foreign marriages that are not otherwise legal under Alaska law and that benefits of marriage extend only to legally married Alaskans. ²

Then, in February 1998, an Anchorage Superior Court judge ruled that, as written, Alaska's Constitution provides a fundamental right for same-sex couples to marriage. ³  The Court ordered further hearings to determine whether a compelling state interest could be found to deny same-sex marriage in the Alaska Marriage Code.

As a result, a significant number of Alaskans believed the Court had trespassed into the people's prerogative. Consequently they sought a stronger defense of marriage through a constitutional amendment. They reasoned that only through a constitutional amendment could the matter be resolved with any finality. A super majority of the legislature ⁴  agreed and a proposition was placed on the 1998 general election ballot.

In November of 1998 Alaska's people voted – by a substantial margin ⁵  - to amend their Constitution. What is commonly called the Marriage Amendment reads:

Section 1.25 – Marriage. To be valid or recognized in this State, a marriage may exist only between one man and one woman.

It was generally believed adoption of the Marriage Amendment constitutionally reserved marriage to the union of one man and one woman and therefore the pathway to the rights, benefits, obligations, qualities and effects of marriage was closed to anyone who was not legally married.

Seven years later, in October of 2005, the Alaska State Supreme Court correctly noted that the text of the Marriage Amendment effectively prohibits same-sex domestic partners from marrying in Alaska and that it effectively denies recognition in Alaska to foreign marriages between same-sex couples. ⁶

However, the Court also held that the Marriage Amendment does not explicitly address the topic of spousal benefits. In fact, the Court went so far as to say, "spousal limitations in benefit programs are unconstitutional, and they are invalid only to the extent they deny benefits to persons who are absolutely precluded from becoming eligible for those benefits (same-sex unions), even though their domestic relationship is not legal."

To many Alaskans, the Court's reasoning conflicts with their own understanding of what the Marriage Amendment would accomplish when they went to the polls in 1998. Their conception was that if marriage was restricted to one man and one woman, only legally married Alaskans would be eligible for spousal benefits.

None believed the Amendment would ever be used to rule, as the Court did, that spousal limitations vis-à-vis benefit programs are "unconstitutional". None believed that the people themselves – by voting for the Marriage Amendment – forced the Court to treat same-sex couples as if they are legally married, as the Court now asserts. ⁷  None believed it would ever be necessary to revisit this issue.

The Constitution was conceived, written and approved by the people. It belongs to the people – not to the courts. Clearly, the right to clarify its meaning when challenged by the courts belongs to the people. Senate Joint Resolution 20 allows the people themselves to determine whether or not they intended in 1998 – and still intend today – to confine the rights, benefits, obligations, qualities and effects of marriage to legally married Alaskans.

¹   Senate Bill 308 – 19th Alaska State Legislature.

²   Sec. 25.05.011. Civil Contract.

1. Marriage is a civil contract entered into by one man and one woman that requires both a license and solemnization. The man and the woman must each be at least one of the following:
1. 18 years of age or older and otherwise capable;
2. qualified for a license under AS 25.05.071; or
3. a member of the armed forces of the United States while on active duty.
2. A person may not be joined in marriage in this state until a license has been obtained for that purpose as provided in this chapter. A marriage performed in this state is not valid without solemnization as provided in this chapter. (§ 1 ch 58 SLA 1963; am § 9 ch 245 SLA 1970; am § 92 ch 127 SLA 1974; am § 1 ch 28 SLA 1975; am § 1 ch 21 SLA 1996)

Sec. 25.05.013. Same Sex Marriages.

1. A marriage entered into by persons of the same sex, either under common law or under statute, that is recognized by another state or foreign jurisdiction is void in this state, and contractual rights granted by virtue of the marriage, including its termination, are unenforceable in this state.
2. A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage. (§ 2 ch 21 SLA 1996).

³   Brause and Dugan v. State of Alaska. This case was dismissed following passage of the Marriage Amendment.

⁴   A 2/3 majority of the legislature is required to place a constitutional amendment on the ballot.

⁵   A 69% majority voted in favor of amending the State's Constitution.

⁶   ACLU v. State & Municipality of Anchorage (10/28/2005) sp-5950.

⁷   Footnote 38 to the ACLU decision states in pertinent part: "We recognize that the benefits became discriminatory only after the legislature acted in 1996 and 1998 and the electorate adopted the Marriage Amendment in 1998."

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