By LIZ RUSKIN
Daily News reporter
The attorney for a gay couple seeking a state marriage license urged the justices of the Alaska Supreme Court on Friday to rein in the Alaska Legislature and remove from the November ballot a constitutional amendment to ban same- sex marriage.
“The same-sex marriage amendment affects (the right to) privacy, equal protection, civil rights, as well as limits the power of the judiciary,” lawyer Bob Wagstaff argued.
He told the justices that the Legislature's proposed amendment is so far-reaching that it constitutes a revision, and revisions require a constitutional convention.
But Kevin Clarkson, an attorney who represents the Legislature, told the justices there's primarily one question before them: “Should the people be allowed to vote?”
Proposition 2, if it stays on the ballot and is approved by voters, proposes a two-sentence addition 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 new section would read.
The Legislature voted this spring to put the measure on the ballot. Opponents of homosexual marriage argue that the amendment is needed to trump an Anchorage judge deciding a legal challenge to the state statute banning same-sex marriages. Superior Court Judge Peter Michalski ruled in February that the choice of a life partner is a fundamental right. If the law is to stand, he said, the state must prove it has a compelling interest in infringing on that right. The case is still pending.
Wagstaff, who failed two weeks ago to convince a Superior Court judge to remove Proposition 2 from the ballot, also voiced objections to two other constitutional amendments slated for the November ballot. One would deny prisoners state constitutional rights, other than those that are also guaranteed by the U.S. Constitution. The other would take from the governor the power to redraw the state's election districts.
During Friday's arguments, the justices peppered the attorneys with questions. Could the Supreme Court strike the prisoner rights amendment independently of the marriage measure? Could it strike the second sentence of the marriage amendment and leave the first? What's the difference between an amendment and a revision?
As for the last question, Clarkson argued that there is no difference. The constitutional framers simply came up with two different methods for revision: constitutional convention and legislative resolution. The bottom line, he said, is that the people can vote to change the constitution.
Justice Allen Compton seemed to think there is a difference.
“Well, of course the people get to vote,” Compton said. “The question is, by what process is the question brought to them?”
The justices did not indicate when they would rule but they heard Friday's arguments on short notice. The Division of Elections hopes to submit the ballots to the printers next week.
copyright © 1998 The Anchorage Daily News
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