1997-1998: Brause & Dugan v. Alaska

In 1997 there’s a new lawsuit filed, the first following the win in Hawaii – Baker v. State Of Vermont.

But in ‘97 and ‘98, DOMAs are adopted in 13 more states, including Washington State, passed by the legislature in 1998 over the veto of Governor Locke.

One’s choice of a life partner is a fundamental right

In February ’98, though, we have a victory in Alaska’s Brause v. State Of Alaska, filed in 1994. The lower court judge grants plaintiffs’ motion for summary judgment, ruling that strict scrutiny will need to be applied. The judge hits all the bases, referencing Skinner (the 1942 case), Loving, the deadbeat dad case, and the Baehr case from Hawaii.

The Alaska judge confirms the Hawaii court’s conclusion that it’s a clear case of sex discrimination, and – echoing California’s 1948 Perez interracial case – he writes,

[T]he recognition of one’s choice of a life partner[] is a fundamental right. The state must therefore have a compelling interest that supports its decision to refuse to recognize the exercise of this fundamental right by those who choose same-sex partners rather than opposite-sex partners.

The plaintiffs’ motion challenges the very definition of marriage found in the Code. Though that definition contains notions with which many are familiar, for example, that marriage means the union of one man and one woman, that is not the end of the inquiry. Indeed, it is the definition of marriage itself which the court must test as a result of plaintiffs’ challenge. It is not enough to say that ‘marriage is marriage’ and accept without any scrutiny the law before the court. It is the duty of the court to do more than merely assume that marriage is only, and must only be, what most are familiar with. In some parts of our nation mere acceptance of the familiar would have left segregation in place. In light of Brause and Dugan’s challenge to the constitutionality of the relevant statutes, this court cannot defer to the legislature or familiar notions when addressing this issue.

[T]he history of the cases interpreting the right to privacy demonstrate that very public conduct may also be protected by the right to privacy, and that the right to privacy reaches beyond simple protection from government intrusion into one’s intimate affairs.

The question presented by this case is whether the personal decision by those who choose a mate of the same gender will be recognized as the same fundamental right. Clearly, the right to choose one’s life partner is quintessentially the kind of decision which our culture recognizes as personal and important. Though the choice of a partner is not left to the individual in some cultures, in ours it is no one else’s to make. Indeed, the marriage license and the marriage ceremony themselves make clear that this must be a choice freely made by the individual.

It is self-evident that same-sex marriage is not ‘accepted’ or ‘rooted in the traditions and collective conscience’ of the people. Were this not the case, Brause and Dugan and the plaintiffs in Baehr would not have had to file complaints seeking precisely this right. 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.

[J]ust as the ‘decision to marry and raise a child in a traditional family setting’ is constitutionally protected as a fundamental right, so too should the decision to choose one's life partner and have a recognized nontraditional family be constitutionally protected. It is the decision itself that is fundamental, whether the decision results in a traditional choice or the nontraditional choice Brause and Dugan seek to have recognized. The same constitution protects both.

The case then goes to the Alaska supreme court on appeal.

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events that are neutral, not directly related, or with both positive and negative effects (black)