By Mark Thiessen
Associated Press
ANCHORAGE — Alaska wrongly denied some same-sex spouses benefits for years by claiming their unions were not recognized even after courts struck down gay marriage bans, court documents obtained by The Associated Press show.
The agency that determines eligibility for a yearly oil wealth check paid to nearly all Alaska residents denied a payout for same-sex spouses or dependents of military members stationed in other states for five years after a federal court invalidated Alaska’s ban on same-sex marriage in 2014, the documents show. The practice also persisted after the Supreme Court legalized the unions nationwide in 2015.
In one email from July 2019, a same-sex spouse living out of state with his military husband was denied a check because “unfortunately the state of Alaska doesn’t recognize same sex marriage yet,” employee Marissa Requa wrote to a colleague, ending the sentence with a frowning face emoji.
[Opinion: We do not have another decade to waste without protecting every Alaskan]
The practice by the Permanent Fund Dividend Division continued until several people questioned or appealed being denied checks in 2019. Denali Smith, who was denied benefits, sued the state that November, seeking an order declaring that Alaska officials violated the federal court ruling and Smith’s constitutional rights to equal protection and due process.
Smith and the state settled the lawsuit Wednesday. Alaska admitted denying benefits to same-sex military spouses and dependents for five years in violation of a permanent injunction put in place by the 2014 U.S. District Court decision. The state also vowed to no longer use the outdated state law, stop denying military spouses and dependents oil checks going forward and update enforcement regulations. There were no financial terms.
In Alaska, the oil wealth check is seen as an entitlement that people use to buy things like new TVs or snowmobiles, fund college savings accounts or, in rural Alaska, pay for high heating and food costs. The payouts come from a fund seeded with oil money. Last year, nearly every resident received $992. The year before, the amount was $1,606.
About 800 pages of emails provided by the state for the lawsuit show a clear misunderstanding or outright disregard of the 2014 precedent and reluctance to reach out to the attorney general’s office for guidance.
The emails, redacted of identifying information about oil check applicants, show as late as 2019, division employees were claiming Alaska does not recognize same-sex marriages, often pointing to an outdated and unenforceable section of state law still on the books as justification.
“It seems like none of them all the way up to the director understood that this was a permanent injunction, meaning if you enforce the law after this date, you’re in violation of a court order and you’re violating people’s rights,” said Anchorage attorney Caitlin Shortell, one of the lawyers who successfully sued to overturn the state’s ban on gay marriage and later filed the lawsuit on behalf of Smith.
The state Department of Law released a statement saying the unenforceable law will remain part of the state’s statutes until lawmakers remove it.
“As for the application of that law which led to the recently settled lawsuit, that policy has been corrected by the Department of Revenue,” the statement said. It added that it’s ensuring every eligible Alaskan receives an oil check as the governor directed after hearing about the issue in 2019.
The emails show employees disregarded a 2017 order from a deputy revenue commissioner to stop denying checks to same-sex spouses, that efforts were made to keep incorrect language about the state not recognizing gay marriage in its literature and that its computer system was programmed to reference the unenforceable state statute in form denial letters.
Smith, who accompanied her wife out of state, was denied an oil wealth fund check in 2019. Shortell also represented another woman whose wife was stationed out of state, and the woman and the couple’s two children were denied benefits.
Division staff listed about 40 people who were denied. Four were marked for further review, but the emails don’t reference what came of those applications.
“Based on their ignorance of and disregard for the law throughout the disclosures, I do not trust their analysis was correct,” Shortell said, adding that the number of people denied benefits could be higher.
The emails show there was confusion among state employees early on about how to handle the same-sex partners of military members.
On March 9, 2015, Kimberly Lane, the division’s eligibility manager, asked appeals manager Robert Pearson for clarification. Pearson writes back, “1st thought – punt to AG,” followed by a smiley face.
“I don’t think the law has been officially struck down, as yet, but I could be wrong,” he continued. “So, 2nd thought, let’s wait until the Supreme Court decision and then we won’t have to take anything back that we’ve already done.”
On March 9, 2017, then-deputy revenue commissioner Jerry Burnett sent top staff at the division an email saying the court decisions in 2014 and 2015 invalidated all opposing laws at the state or local level.
Yet the practice continued for another 2 1/2 years.
An applicant who had been denied a check complained to their lawmaker in 2019, and the issue was escalated to Anne Weske, then the division’s director who had received the 2017 directive to recognize same-sex marriages.
“I seem to recall possible guidance from the prior administration in stating that we COULD allow them,” Weske wrote Sept. 23, 2019, noting that she’d check, but “if they were denied there is law stating that we don’t recognize same sex marriage.”
