Jurisprudence

Alaska Appears to Be Covering Up Illegal Discrimination Against Same-Sex Couples

The White House lit up in rainbow colors
The White House lit up in rainbow colors after the Supreme Court affirmed same-sex couples‘ constitutional right to marry on June 26, 2015.
Molly Riley/Getty Images

On Nov. 20, Denali Nicole Smith filed a lawsuit accusing Alaska of illegally denying her benefits because she is married to a woman. State Attorney General Kevin Clarkson promptly denied that the state had intentionally violated a court order guaranteeing equal rights to same-sex couples. But further testimony has revealed that Alaska officials appear to have willfully discriminated against same-sex families—and now seem to be attempting to cover up their unconstitutional conduct.

Smith’s saga began after she applied for a payment from the state’s oil wealth fund, the Permanent Fund Dividend. Smith and her wife, Miranda Murphy, are both Alaska residents, and therefore qualify for the PFD. Both currently live in Florida, where Murphy—a member of the Armed Forces—is stationed. Under Alaska law, residents remain eligible for the PFD when they move temporarily to join military spouses stationed out of state. According to Smith’s sworn declaration to the court, however, when she applied, a PFD representative named Jerry Stephens told her, “I always hate having this conversation with people, but you aren’t eligible to receive your 2019 PFD because Alaska doesn’t recognize same-sex marriage.”

Stunned, Smith called back and reached another PFD representative, Annie Lemana, who she says confirmed that she was ineligible for the fund. Lemana sent Smith an official booklet that explains how state officials should enforce Alaska law. The booklet, dated 2019, stated that residents who join same-sex spouses stationed out of state may not receive their PFD due to the ban on same-sex marriage. Lemana also sent Smith a formal rejection letter that cited Alaska’s marriage ban as the basis for denying her application.

Smith then contacted an Alaska attorney, Caitlin Shortell, and explained her situation. Shortell immediately recognized that the state’s conduct was egregiously unlawful. A federal court found Alaska’s same-sex marriage ban unconstitutional in 2014 and permanently prohibited the state from enforcing it. In 2015’s Obergefell v. Hodges, the Supreme Court affirmed that states must recognize same-sex marriages “on the same terms and conditions as marriages between persons of the opposite sex.” Two years later, the court clarified that states must provide all couples with the same “the constellation of benefits … linked to marriage,” barring any “disparate treatment” of same-sex marriages. There is simply no plausible argument that Alaska can, in accordance with Obergefell, discriminate against same-sex couples in the distribution of PFD money.

According to Smith’s declaration, the state performed an about-face shortly after she hired Shortell. Stephens, the PFD representative, informed Smith that her application had suddenly been approved, but did not explain the sudden reversal. He only told her, Smith said, that the state’s “lawyers realized it was wrong what they did to you.” Stephens would not promise that Smith would continue to receive her PFD each year, or that the state would ensure that all other same-sex couples received their payments, Smith added. Instead, according to the declaration, he said that “our lawyers are working on it” and that he had to “choose [his] words carefully.”

Because the state would not pledge to continue her PFD payments, Smith forged ahead with her suit. Clarkson, the attorney general, responded with a blistering press release accusing Shortell of filing a “false lawsuit.” According to Clarkson, the PFD Division had put applications from gay Alaskans like Smith “on hold” while it determined their eligibility. The division had “inadvertently” sent Smith a rejection letter, which it later corrected. Clarkson added that he was “appalled” that Shortell had breached her “ethical duty to not file false factual statements with a court.” He also denied Shortell’s allegations in a court filing.

What Clarkson did not anticipate was that a whistleblower in the PFD Division would come forward with allegations that the attorney general is lying—or, at a minimum, unaware of the truth.

This whistleblower, who remains anonymous but is said to be willing to testify, told Shortell a very different story. According to Shortell’s sworn declaration, the whistleblower confirmed that the state had an official policy of denying PFDs to same-sex spouses like Smith—and to their children. The whistleblower also said that state officials in Juneau explicitly told the division not to pay these PFDs. Pursuant to this position, the previous director of the division, Sarah Race, allegedly said that she would enforce the state’s same-sex marriage ban until it was halted by further legislative action or litigation.

Smith’s litigation appears to have done the trick: Immediately after she filed her lawsuit, management directed employees to pay all same-sex spouses illegally denied PFDs in 2019. As of Sunday, they had already identified seven Alaskans whose PFD applications were rejected because they are gay, according to Shortell’s account of the whistleblower’s allegations. But the division has not yet identified wrongful PFD rejections from 2014 through 2018, and it is not clear whether it will do so. Smith and Shortell hope to use their lawsuit to learn, through discovery, how many other same-sex couples faced discrimination, and to help them vindicate their rights.

All available evidence and testimony indicates that the whistleblower is telling the truth. For instance, Stephens allegedly told Smith that “I always hate having this conversation” about same-sex couples’ PFD ineligibility, suggesting that he has enforced the discriminatory policy against other Alaskans. Moreover, the state’s official booklet, which is updated annually, forbade PFD payments to gay Alaskans like Smith. Clarkson insisted that Smith’s rejection letter was a “mistake,” a technical error made in good faith. It is exceedingly difficult to believe that is true.

Had Smith not filed her lawsuit, Alaska may well have gone on discriminating against same-sex couples. The state’s alleged plan, after all, was to deny PFDs to gay Alaskans living with military spouses out of state until it got caught. Even now, Clarkson—who has a history of warping Supreme Court precedent to further a reactionary agenda—refuses to acknowledge the state’s apparent wrongdoing. Constitutional rights do not protect themselves. And Smith’s case raises the troubling possibility that other Republican-led states may still be discriminating against same-sex couples, hoping that no one has the resources to challenge them in court.