ON THIS DAY IN 1998...
An Alaska superior court ruled that excluding gays from marriage denies them a fundamental right, ordering a trial in Brause v. Bureau of Vital Statistics.
Jay Brause and Gene Dugan had exchanged vows in a “holy union ceremony” in 1979, and as early as 1986 began considering a lawsuit for full marriage rights. The politically active couple were discouraged by gay-rights organizations from doing so and moved on, until the Hawaii Supreme Court ruled in May 1993 in favor of three same-sex couples who had sued the state for the right to marry. Inspired by events in Honolulu, the Anchorage couple applied for a marriage license from the state’s Vital Statistics office. A judge who reviewed the request ordered the office to deny it, concluding that “marriage between two persons of the same sex is not contemplated by our statutory scheme.” The two tried again, retaining a lawyer and rallying the state’s very small gay-rights community as they prepared to mount a constitutional challenge. In August 1995, still facing objections from national organizations like Lambda Legal, Brause and Dugan sued the state, represented by a local attorney working pro bono on their behalf.
A year and a half later, a trial-court judge granted their motion for summary judgment. “The relevant question is not whether same-sex marriage is so rooted in our traditions that it is a fundamental right, but whether the freedom to choose one's own life partner is so rooted in our traditions,” wrote Superior Court Judge Peter A. Michalski. “Today the court has recognized that the personal choice of a life partner is fundamental and that such a choice may include persons of the same sex.” That shifted the burden to Alaska’s attorney general, who would have to meet an exacting civil-rights test at trial.
Hawaii’s top court had followed a similar trajectory nearly five years earlier, demanding a trial to settle factual issues. There, Hawaii’s attorney general struggled to demonstrate that limiting marriage to straight couples from marriage advanced a “compelling state interest,” and legal observers expected a similar outcome from a trial in Juneau. Following defeat at trial, Hawaii legislators maneuvered to put on the 1998 ballot a constitutional amendment that prohibited judges from recognizing a right for same-sex couples to marry. After the Alaska Superior Court ruling in February 1998, opponents of gay marriage scrambled to put before voters Measure 2, which would amend the Alaska Constitution to specify that “marriage may exist only between one man and one woman.”
That November, voters in both Alaska and Hawaii both approved (by landslide margins) their constitutional amendments, the first of dozens passed nationwide. In both states, the enactment of the amendments effectively killed off the lawsuits that had provoked them, but did so slowly. Only in April 2001 did the Alaska Supreme Court rule that Brause and Dugan no longer had grounds to challenge the state’s rejection of their 1994 application of a marriage license.
In September 1999, Alaska dismissed Brause v. Bureau v. Vital Statistics because voters the previous year had changed the constitution by referendum. That December, the Hawaii’s did the same with Baehr v. Anderson (the case that had begun as Baehr v. Lewin had been twice renamed to reflect new state public-health directors serving as defendant). Since Vermont’s legislature had created a legal classification that existed in no other jurisdiction in the world, there was little basis on which to demand other states recognize a civil-union license. Bonauto was also still itching to mount a challenge the Defense of Marriage Act in federal court, but — again because Vermont had pointedly decide to give gay couples everything other than the legal designation of “married” — none of them could claim to have been harmed by Congress’s decision to single them out for unfair exclusion under law.
When they read of a similar suit filed in Vermont, Brause and Dugan were shocked to learn that Wolfson had been encouraging it along — and lining up the institutional support on its behalf — even as he disparaged their case that had a nearly three-year headstart in Alaska. “You now have a growing field of casework and all of us lack financial resources,” Brause complained to Wolfson. “This is where you may have thought we would be without a unified front to [do] this work and, in fact, this is where we are.” Brause and Dugan would end up winning their argument before the Alaska Supreme Court, and never stopped fuming as what they saw as Wolfson’s manipulations to deny them support as they did so. “This whole matter reminds me of something I learned in politics long ago: stay close to your opposition, but stay closer to your friends,” Brause, a former president of the ACLU affiliate in Alaska, wrote to Wolfson.
