In light of this, it's useful to remember that Gene Dugan and Jay Brause, an Anchorage couple then, sued the State of Alaska over this same issue back in 1994.
From Religious Tolerance:
"The plaintiffs asked that the existing Marriage Code be declared unconstitutional because it violates two rights guaranteed by the Alaska constitution: their rights to privacy (their right to be let alone) and their rights of equal protection. Wagstaff pointed out that there are over 100 state statutes that provide rights and protections to married couples which are not available to homosexuals who live together in a permanent partnership. The Alaska Constitution forbids gender-based discrimination, yet is withholding privileges from Brause and Dugan solely because of they are both male."
From Superior Court judge Peter Michalski's ruling:
"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." He ruled that "marriage, i.e., the 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."This was not the first such ruling in the US. Hawaiian courts had also found no reason to ban same-sex marriage. Thus the last two states admitted into the union, were the first to recognize same sex marriage. But it wasn't to last. In Hawaii and in Alaska constitutional amendments limiting marriage to one man and one woman passed and in both states the courts bowed to the new constitutional language.
Alaska's a small state and people tend to know each other. I've met a lot of people that I write about. In the case of Brause and Dugan and Judge Michalski, I should say that I know them well enough that I've eaten dinner at their homes. But that doesn't change the facts that Alaska was on the forefront of attempting to legalize same-sex marriage. What's different is inside the brains of the American public, including the judges who are ruling.
In a recent post a commenter challenged my trying to understand the thinking of people with whom I disagree. This shift in the way people think about same-sex marriage is, for me, evidence that such theoretical speculation pays off. But, of course, it also needs a lot of other. more action-oriented strategies by many different people. Minds have changed radically in the last 20 years.
I would note that Jay and Gene couldn't wait for Alaska to change and moved to the UK where they could get married. And Jay, using the more formal version of his name, Jacob, is a regular and thoughtful commenter on this blog.
I know that each positive court decision helps salve the wounds they received in their battle, which seemed so Quixotic at the time. They know that their fight in Alaska did help set the groundwork for the victories in recent years. And it's one of those quirks of life I find so amazing, that they can walk around London (or wherever they happen to be) without anyone knowing the historic role they have played. But you can read about it in detail at Religious Tolerance. Judge Michalski is now retired, but he too, can rest easy, knowing that he made a decision back in the dark ages, that would eventually be recognized as the right decision. And then there's former Sen. Lyda Greene who helped keep Alaska in the dark ages by sponsoring the Constitutional Amendment limiting marriage to one man and one woman.
You can read Judge Michalski's decision here.
Note: Since I drafted this yesterday and slept on it before posting, 300 couples have married in Michigan before a Federal judge put a stay on further marriages pending appeal.