By LIZ RUSKIN
Daily News reporter
The proposal to add a same-sex marriage ban to the state constitution will remain on the November ballot with some wording deleted, the Alaska Supreme Court ruled Tuesday. But a second ballot measure, caught in the cross-fire of the legal battle, fell under the justices' scrutiny.
Proposition 1, which the justices struck from the ballot in Tuesday's ruling, would have denied to prisoners all state constitutional rights except those guaranteed by the U.S. Constitution.
“l didn't even know it was being contested,” said Sen. Dave Donley, the Anchorage Republican who sponsored the prisoners' rights amendment.
That ballot measure was not part of the legal challenge attorney Bob Wagstaff filed in July. Wagstaff, representing a gay Anchorage couple and two supporters, at first challenged only the same-sex marriage amendment, saying it affected so many constitutional rights that it required a constitutional convention.
Wagstaff later amended his lawsuit, asking the courts to also throw out the prisoners' rights measure and a third proposed constitutional amendment that would take from the governor the right to redraw election boundaries. He cited the same grounds: that the measures were so broad that each amounted to a constitutional revision, which requires a convention.
When it came to the prisoners' rights amendment, the Supreme Court agreed, even though attorneys gave it only a passing mention in their arguments to the court last week.
“It was just a walking target,” said attorney Allison Mendel, who represented the Alaska Civil Liberties Union in the case.
The court also decided to strike half of the proposed marriage amendment.
Here's the amendment as the Legislature proposed it:
“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's attorney, Kevin Clarkson, argued that the second sentence merely supported the first sentence and was, at worst, superfluous. But the court said superfluous language should not be added to the constitution.
The majority of the court also decided the reapportionment amendment, which gives the power of redrawing election districts to a five-member board, is an appropriate ballot measure.
“While the change is an important one, it is simple to express and understand,” the majority wrote.
Justice Allen Compton wrote a dissent, saying he considers it too broad for an amendment. Otherwise, the five justices were unanimous in their opinion.
While Clarkson considered the opinion a victory for the legislature, Wagstaff also found reason to celebrate.
“I'm very pleased that the court went as far as it did on the same-sex amendment,” he said. “It was the second sentence that was the most dangerous.”
But the opinion angered Donley.
“It's outrageous conduct by the judicial branch,” the senator said. The justices “grossly overstepped their authority” in not letting the people amend the constitution, he said.
He, like Clarkson, said there is no difference between an amendment and a revision - an argument I the justices rejected.
Attorney General Bruce Botelho said he was troubled that the court ruled on the prisoners rights amendment even though it was brought in as a side issue.
“Nevertheless, the court clearly has the power to do what it's done,” he said.
The Division of Elections, which planned to send the ballot to a California printer right away, said Proposition 1 will not appear on the ballot but the other measures will not be renumbered.
If the same-sex amendment passes, Wagstaff said, further legal challenges will ensue.
copyright © 1998 The Anchorage Daily News
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