The American Civil Liberties Union and the State of Alaska, led by Republican Governor Frank Murkowski, have come to blows over the implementation of last year’s state Supreme Court decision requiring the state to provide equal benefits for same-sex partners of state employees.
The 2005 Supreme Court ruling was based on its reading of the state Constitution, not any legislation adopted by the state.
Facing a January 1, 2007, deadline from the Court to implement the benefits, the state has proposed regulations that the ACLU charges fall far short of equal treatment. In a September 1 order, that amounts to an advisory to the state, an Anchorage judge sided with the ACLU, asserting that the approach proposed by the state was likely to violate constitutional requirements.
The ACLU sued the state and the city of Anchorage on behalf of nine same-sex couples. One member of each couple was an employee either of the state or the city. They claimed that the state Constitution’s equality requirement was violated by the state and city providing benefits to employees’ legal spouses that were not available on equal terms to committed same-sex partners of their staffers.
The Alaska plaintiffs could not sue for marriage, because the people of that state amended their Constitution in 1996 to define marriage as the union of one man and one woman. That amendment was an effort to forestall what was widely seen as a likely Alaska Supreme Court decision approving a trial judge’s ruling that excluding same-sex couples from marriage violated the state Constitution.
Responding to the more recent employee benefit suit, the Supreme Court ruled last October 28 that the denial of spousal benefits to same-sex partners of state and city employees was an unconstitutional “difference in treatment” that did not even pass the minimum scrutiny applied to non-fundamental rights.
On June 1 of this year, the Court sent the case back to the Superior Court in Anchorage to oversee the state’s compliance with last year’s opinion. The state responded by proposing regulations that would allow certain same-sex partners to qualify for “equal treatment” in health insurance and survivor’s benefits. The state proposal did not extend to any other benefits given to spouses of employees, and adopted a demanding list of requirements for eligibility that would probably disqualify many domestic partners.
According to the state proposal, partners would have to meet six out of nine specified criteria, in addition to living together in a shared primary residence in Alaska as exclusive intimate partners for 12 consecutive months. The nine criteria would in effect require same-sex couples to engage in what is sometimes called “gay family planning”—generating numerous legal documents to create a web of mutual financial and legal obligations based on joint ownership of real estate and other assets, wills and powers of attorney, and designations as beneficiaries under insurance and employee benefits policies.
The state, having denied same-sex couples the right to marry, evidently wants to require them to take all the steps available to simulate a marital relationship before they can qualify for health or survivorship benefits.
The ACLU protested to Anchorage Superior Court Judge Stephanie Joannides that these requirements fall well short of compliance with the high court’s order of equal treatment. Opposite-sex couples can get married and immediately qualify, without any 12-month waiting period, for numerous benefits—not just health and survivor benefits—as public employees. The ACLU also pointed out that the requirement to live together for 12 consecutive months in a shared primary residence ignored the common practice of Alaskans who can afford to do so of spending significant time away from their primary residence.
The city of Anchorage parted company from the state by modifying its residency requirement and eliminating the 12-month provision. But, the state responded that it was not up to the trial court to decide whether the regulations comply with the Supreme Court’s ruling, which it said are necessary to insure that the state was not ripped off by people who are not really domestic partners. Alaska also maintains that the Supreme Court’s decision applied only to the most central economic benefits, as others did not present issues of constitutional dimensions.
In effect, the state’s Republican administration is trying to comply as narrowly as possible with the Supreme Court’s order.
Judge Joannides’ September 1 order expresses the view that the proposed regulations, which will be the subject of public hearings during the last week of September, probably violate the Supreme Court’s decision. She found that any one shortcoming identified by the ACLU might, standing on its own, survive the minimal level of judicial scrutiny, but when viewed cumulatively they amount to significantly unequal treatment. “When viewed as a whole,” she found, they are “overly stringent.”
Joannides also endorsed the ACLU’s objection to the proposed requirement that same-sex couples swear in an affidavit that they have had an “exclusive” relationship for the previous 12 months, noting that no such requirement is imposed on married couples, and also to the mandate that to qualify for survivor’s benefits couples file a new such affidavit each year.
The state argued these requirements are needed to enable proper administration of benefits, but the judge concluded that the burden on government would actually increase from the additional paperwork. A much simpler scheme would be a domestic partnership registry, with a requirement that couples who split up file a dissolution form so that the state knows to end partner benefits.
Ultimately the Alaska Supreme Court will have to rule on the state’s proposed compliance.