Alaska top court hears gay rights case

By Advocate.com Editors

Originally published on Advocate.com December 18 2002 1:00 AM ET

The Alaska supreme court heard arguments Monday regarding whether the state and the municipality of Anchorage must extend benefits to the partners of gay and lesbian employees. In a case that dates back to 1999, lawyers for the American Civil Liberties Union, the municipality, and the state took about an hour to present their positions. The court gave no indication when it would rule. Plaintiffs argue that the state's ban on marriage between people of the same sex makes it impossible for gay men and lesbians to obtain the same benefits for their partners as married employees. "The practical result is, if you can't get married, you can't qualify for those benefits," said ACLU attorney Allison Mendel. "It that fair?" Mendel said the reasons presented by the state for restricting benefits such as health insurance, retirement funds, and pensions to spouses only are "pretty lousy."

The case arose after nine gay and lesbian employees filed suit with the ACLU shortly after Alaska voters passed a constitutional amendment banning state recognition of marriages between members of the same sex. Last November, superior court judge Stephanie Joannides ruled that the state and municipality of Anchorage do not have to extend benefits to gay and lesbian couples. She found that gay couples fall into the same legal category as unmarried heterosexual couples and therefore are not entitled to benefits. That theme was picked up on by assistant attorney general John Gaguine, who said far more opposite-sex couples who are not married do not receive benefits than gay couples. "This does not involve discrimination," Gaguine said. Gaguine said the state has several compelling reasons for drawing the line at marriage, including cost savings, ease of administration, and the state's goal of promoting marriage.

The last argument is particularly bogus, Mendel said. "Marriage promotion? They can't marry. If you can't get married, how does it promote marriage?" she asked. Chief Justice Dana Fabe asked how, if such partners were not married, the state could protect itself from being hoodwinked by people who just want benefits. Ken Choe, an attorney for the ACLU's Lesbian and Gay Rights Project, said the University of Alaska has demonstrated that such a benefits program can be implemented. Mendel said the state's argument that it's too difficult to administer a similar program is weak. Many towns and municipalities across the country are doing it, she pointed out.

Plaintiff Dan Carter, 55, said the marriage requirement is unfair to his longtime partner, 71-year-old Al Incontro. Incontro, who received health insurance as an employee of IBM, could have used extra insurance two decades ago when he needed heart surgery, Carter said. Now that the two are getting older, each would like to see the other get his pension benefits, depending on who dies first. "It is the issue of fairness, equal pay for equal work," said Carter, who retired in May as a marketing manager for the Anchorage bus service.