by Mark Thiessen, Associated Press
ANCHORAGE, Alaska (AP)—The Alaska Supreme Court heard arguments Wednesday in an appeal from the state over an Alaska taxation policy that treats same-sex couples differently from straight couples.
Last year, a superior court judge ruled same-sex couples are entitled to the same senior citizen and disabled veteran property tax exemptions as married couples, saying a constitutional amendment defining marriage as between one man and one woman doesn’t trump equal protection laws.
Superior Court Judge Frank Pfiffner said in his September 2011 decision that the state’s marital classification violates the Alaska Constitution’s equal protection clause.
The state did not sufficiently distinguish this case from a 2005 Alaska Supreme Court ruling that addressed discrimination based on sexual orientation, Pfiffner said. In that case, brought by the Alaska American Civil Liberties Union, the court said state and municipal same sex employees could not be denied partner benefits given to married couples.
The ACLU also represented three same-sex couples in the taxation case.
In its appeal, the state argued the earlier case has no bearing in the taxation issue and the ACLU, along with Pfiffner, were too narrow in limiting the scope of the marriage amendment approved by voters in 1998 as simply making a legal definition of who can marry in Alaska.
“It didn’t just mean that people who were not heterosexual could not be married, but all the laws in place that regulate and impact marriage would be limited, too,” assistant Attorney General Lance Nelson said following the hearing.
But Roger Leishman, an attorney representing the plaintiffs, said the Alaska Supreme Court already ruled in 2005 that the marriage amendment simply means same-sex couples cannot be married in Alaska.
“Other government rights and obligations have to be looked at on a case-by-case basis. In this case, we’re looking at a particular tax exemption that is treating this couple different than it would a married couple,” said Leishman, who represents plaintiffs Julie Schmidt and Gayle Schuh.
In his ruling, Pfiffner also said a state statute excluding same-sex couples from “being entitled to the benefits of marriage” cannot supersede the constitutional right to equal protection.
Nelson told the justices such an interpretation might shock the voters who, 14 years ago, approved the measure. “I think the electorate would be surprised,” he said.
Alaska tax exemption law allows seniors over age 65 and disabled veterans to exclude from their property tax the first $150,000 of assessed value of their primary home. Married couples get the exemption whether the home is owned by the husband, the wife or both.
Schmidt, 69, and Schuh, 65, have co-owned a home in Eagle River since 2006. Schmidt qualified for the exemption but was unable to exempt the full amount because the law deemed her the occupant of only half the house.
Two other plaintiffs—Julie Vollick, a permanently disabled military veteran, and her former same-sex domestic partner, Susan Bernard—had a similar experience.
Vollick co-owned a home with Bernard from 2004 until 2010. If Vollick and Bernard had been married, Vollick would have received a $528 greater tax benefit from the exemption, the judge said. The couple has since separated.
The other plaintiffs were Fred Traber, 63, and Laurence Snider, 71, a same-sex couple who share a condominium in Anchorage. Snider qualified for the tax exemption, but the home is in Traber’s name. Snider was unable to claim any part of the tax exemption.
Nelson said in such cases, the younger partner is only denied the benefit of the exemption until he or she reaches age 65.
The justices didn’t indicate when they might rule.
“I am hopeful that they’re going to come out on the side of equality for everyone,” Schuh said.