By LIZ RUSKIN
Daily News reporter
A state Superior Court judge ruled Monday, that Proposition 2, a proposed constitutional amendment aimed at preventing homosexual couples from marrying, can proceed to the November ballot, despite legal challenges from the Alaska Civil Liberties Union and two Alaska couples.
Judge Sen Tan also ruled that the ballot language chosen by Lt. Gov. Fran Ulmer — which drew objection from both defenders and detractors of the marriage amendment — is just fine.
Tan announced his oral decision immediately after hearing legal arguments in the case so that the Alaska Supreme Court could hear the appeal of the losing side before the ballots are printed. Lawyers for those who object to the amendment say they will file an appeal as soon as possible.
If approved by voters, the ballot proposition would add a two-sentence section to the Alaska Constitution: “To be valid or recognized in this state, a marriage may exist only between one man and one woman. No provision of this constitution may be interpreted to require the state to recognize or permit marriage between individuals of the same sex.”
The Legislature voted this spring to put the constitutional amendment on the ballot to trump an Anchorage judge whom it suspected, would soon rule that the state's 1996 law banning same-sex marriage violates the constitutional rights of homosexuals.
Attorney Bob Wagstaff, who filed the legal challenge to the 1996 law on behalf of two Anchorage men who were denied a state marriage license, challenged the amendment on several grounds.
For one, he argued Monday, the proposed change to the constitution is so broad and far-reaching that it constitutes a revision, not merely an amendment. It not only deals with marriage but also upsets the balance of governmental powers by curtailing the power of judges to interpret the constitution, he said.
He urged the judge to view the marriage amendment along with two others scheduled to appear on the November ballot. One would take from the governor the right to redraw electoral districts; the other would deny Alaska prisoners state constitutional rights beyond those found in the federal Constitution.
“These are, your honor, very dramatic and serious revisions,” Wagstaff said.
Revisions can be accomplished only through a constitutional convention, and the framers of the constitution had good reasons for the safe-guard, he said. They wanted, he said, to limit the ability of a “runaway, veto-proof Legislature” from overhauling the constitution by putting up amendment after amendment.
Assistant attorney general Jim Baldwin argued that Proposition 2 was not too far-reaching for an amendment.
“We're talking about marriage here,” he said. “We're talking about a very limited area.”
He also disagreed that the three ballot measures should be considered as a whole, as one slate and one major revision.
“The voters can pick and choose among these provisions, as if they were at a buffet,” he said.
Historically speaking, Alaskans have amended the constitution without a lot of distinction between amendments and revisions, he said.
Attorney Kevin Clarkson, hired to represent the Legislature, also argued that the ballot language Ulmer chose was biased because she described the measure as “limiting marriage” to one man and one woman. That wrongly suggests that homosexuals now have the right to marry, he said.
Tan, however, said the question of whether gays now have a constitutional right to marry each other is being handled in a separate case before another judge.
Superior Court Judge Peter Michalski ruled in February that the same-sex marriage ban now on the books infringes on fundamental rights. If it is to stand, he said, the state must show it has a compelling interest to violate those rights. That case, brought by long-time couple Jay Brause and Gene Dugan, is still pending.
copyright © 1998 The Anchorage Daily News
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