By LIZ RUSKIN
Daily News reporter
Two Alaska couples - one heterosexual and married, the other homosexual and seeking a state marriage license - filed a lawsuit Friday to remove a proposed constitutional amendment banning same-sex marriage from the November ballot.
The amendment, which the Alaska Legislature decided to put before voters in the general election, says that to be valid, a marriage may exist only between one man and one woman. It also says that “No provision of this constitution may be interpreted to require the state to recognize or permit marriage between individuals of the same sex.”
The amendment's supporters say it preserves the institution of marriage as it has been understood in the Western legal tradition for centuries.
But the Rev. Howard Bess, the primary plaintiff in the case, said the amendment is improper in a state constitution that grants great freedoms.
Part of his motivation in trying to keep the amendment off the ballot, he said, is to carry on the Baptist tradition of seeking religious freedom.
“It just seems to me that for people who are sincerely religious in the Legislature, for them to come along and want to codify their religious convictions in our state constitution just seems short-sighted, in my eyes, and it needs to be nipped in the bud,” said Bess, who is pastor of Church of the Covenant near Wasilla.
Another motivation, Bess said, is that he and his wife have for years been close friends with the other plaintiffs in the suit, Jay Brause and Gene Dugan. Brause and Dugan filed a lawsuit in 1995 claiming they had a constitutional right to a marriage license. A Superior Court judge agreed in a preliminary decision, prompting outrage from social conservatives, some religious leaders and several Republican legislators.
They said the ruling flew in the face of well-established tradition and threatened to undermine the value of marriage.
This spring, led by Sen. Loren Leman, R-Anchorage, the Legislature decided to put the issue to the voters, who must approve any changes to the constitution.
The lawsuit filed Friday says the amendment would violate the equal protection clause of the U.S. Constitution. Attorney Bob Wagstaff, who wrote the ballot challenge, said the amendment goes much further than is immediately obvious. It infringes on the principle of separation of powers because it tells judges how they can interpret the constitution, he said. And, because of the amendment language, it would allow the Legislature to some day make it a crime for gay couples to call themselves married, or to be married in a religious ceremony, he said.
The Legislature, he argued, doesn't want only to deny homosexuals the right to a marriage license.
“They also want to deprive them of any of the possible benefits of marriage,” Wagstaff said. “Let's not kid ourselves. They're on a divine mission ... If the constitution stops it, they're out to change the constitution.”
The lawsuit also challenges the ballot title the lieutenant governor's office put on the ballot measure, which reads: “Constitution Amendment Limiting Marriage.” Wagstaff proposes that the measure carry the title “Constitutional Amendment Denying Homosexuals Fundamental Rights.”
Leman, who works as a commercial fisherman in the summer, could not be reached for comment Friday. The senator's aide, Mike Pauley, said the amendment is not aimed at making homosexual relationships criminal.
“I think that argument is absurd,” he said. “It's a desperation tactic. I think these are people who know they are behind in the polls.”
The Legislative Council, a group that acts for the Legislature after the session ends, anticipated the legal challenge and voted Wednesday to hire a private Anchorage attorney, Kevin Clarkson, to fight the effort, Pauley said.
The case has not yet been scheduled for a hearing, but Wagstaff said he hopes to have the case decided by the Alaska Supreme Court in time for the November election.
Groups on both sides of the issue, from the Alaska Family Coalition to the Washington D.C.-based People for the American Way, have registered with the Alaska Public Offices Commission, saying they are planning campaigns. The same-sex marriage amendment is scheduled to be measure No. 2 on the ballot, according to the Division of Elections.
copyright © 1998 The Anchorage Daily News
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