- Associated Press - Friday, October 10, 2014

ANCHORAGE, Alaska (AP) - The first gay marriage ban that was passed in the U.S. will be tested before a judge in Alaska on Friday, the culmination of a week when a federal appeals court struck down similar bans in two states and the U.S. Supreme Court refused to weigh in on the issue.

Five gay couples have sued the state of Alaska to overturn a constitutional amendment approved by voters in 1998 that defined marriage as being between one man and one woman. U.S. District Judge Timothy Burgess will hear the case Friday afternoon in federal court in Anchorage.

It wasn’t immediately clear when he might rule, but Burgess told lawyers on both sides to be prepared to discuss the 9th Circuit Court’s decision this week striking down similar bans in Idaho and Nevada and the implications of the decision for Alaska.

The couples, including four married outside the state and one unmarried couple, claim in their lawsuit the ban violates their protection to due process and equal protection under the U.S. Constitution.

The Alaska attorney general’s office said it would not comment ahead of Friday’s hearing, and state lawyers were reviewing the 9th Circuit opinion.

However, in a filing last month, the state said the question of whether to define marriage to include gay couples should be decided by citizens, not the courts. The state also argued that Alaska laws prohibiting recognition of same-sex marriages from other states or countries do not violate the plaintiffs’ constitutional rights.

“The state has absolutely not presented any arguments that have not been struck down by the 9th Circuit,” said Joshua Decker, executive director of the America Civil Liberties Union of Alaska, which has filed a friend of the court brief on behalf of the five gay couples.

“The state does not have a leg to stand on when it comes to arguing why this discriminatory ban should not be struck down,” he said.

If the state of Alaska doesn’t have a unique argument that wasn’t already decided by the Idaho and Nevada cases by the 9th Circuit, it stands no legal chance of prevailing in the 9th Circuit, said William Eskridge, a Yale University law professor.

If the state were to win at the district court level, it would be reversed by the appeals court on appeal, he said.

“If they lose, as they ought to, at the district court level, if they want to take an appeal, the 9th Circuit will summarily affirm and probably very quickly,” he said.

Even then, the state would have options. The 9th Circuit decision would be made by a panel of judges, and the state could appeal to the full court to reconsider the Nevada and Idaho ruling or seek review by the U.S. Supreme Court, which seemed unlikely given the court’s refusal to step in Monday. That could change if another federal appeals court were decide such bans were constitutional, thus making different standards in the country.

Decker, with the ACLU, called on Alaska Gov. Sean Parnell to stop wasting taxpayers’ time and money in defending the gay marriage ban.

“There’s no ambiguity about what the outcome’s going to be,” Decker said. “The only thing we’re fighting about is when it’s going to happen.”

Parnell’s office declined immediate comment to The Associated Press.

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