With AG Confirmation Pending, Same-Sex Marriage Ban Brief Causes Rift With Democrats

Last week, Alaska Attorney General designee Craig Richards joined 15 other states in asking the Supreme Court to uphold their bans on same-sex marriage. This comes just as legislators are deciding whether to support his confirmation in a vote later this month. APRN’s Alexandra Gutierrez reports that the action has left some Democratic lawmakers in an uncomfortable spot.

“State of Alaska signs brief in support of doomed ban on marriage equality. That was the press release the Alaska Democratic Party sent on Friday, which went on to describe the attorney general’s move as “embarrassing.”

Fast forward to a House Minority press availability on Tuesday.

“I do support his action of upholding the Constitution of the State of Alaska — his oath of obligation,” House Minority Leader Chris Tuck told reporters.

The Anchorage Democrat explained that it was Attorney General designee Craig Richards’ “duty” to protect the state constitution, “no matter what his beliefs are” on a provision that bans same-sex marriage.

The statement was a major shift in rhetoric from Democratic leadership, given that the caucus has regularly pushed for anti-discrimination bills and the issue is important to their base. Asked three follow-up questions on the amicus brief, Tuck struggled to explain his support for the attorney general’s authority without getting into the policy the attorney general was defending.

“We want to have a separation of powers from the executive branch, for the legislative branch, and the judiciary branch,” said Tuck at the availability. “We don’t want to politicize the judiciary branch in any way.”

The attorney general, who is in fact part of the executive branch, is not removed from politics. Richards serves at the pleasure of the governor, and the Legislature must confirm him by the session’s end.

And that’s where the rub comes for Democrats like Tuck, who have been fairly supportive of his nomination.

This is what puts us in an awkward position, because many of us are very upset with the amicus brief. But at the same time, we want to support the governor and we want to have a person in there that he can rely on.”

Democratic lawmakers have been friendly toward independent Gov. Bill Walker since he took office. Most of the opposition to Walker’s policies and appointments has come from the right. The nomination of Craig Richards — Walker’s former law partner — to the post of attorney general has attracted special attention from Republicans, who have raised questions about his work on lawsuits against the oil industry.

But since Richards filed the amicus brief last week, some Democrats have expressed reservations about him. Rep. Andy Josephson of Anchorage says he would like to have Richards further explain why the state should try to protect language banning same-sex marriage.

“I like him personally. I don’t doubt his intellectual bonafides,” said Josephson. “But there is a lot of pushback on this issue.”

Some Democrats are concerned about the process as well as the policy.

The issue of same-sex marriage attracted considerable attention during Walker’s run for office. During the campaign, Walker criticized incumbent Republican Gov. Sean Parnell for appealing a court decision favoring same-sex marriage. He argued that “pursuing expensive litigation that has little chance of victory is an unwise use of our dwindling resources.”

On Friday, Walker made a point to say he was not involved in the attorney general’s decision to join the brief — and even disagreed with it as a matter of policy. But Walker also said he “fully respect[ed]” the attorney general’s power to pursue that course of action.

Sen. Bill Wielechowski, of Anchorage, says it’s highly unusual for an attorney general to get that level of autonomy, if that is the case.

“As long as I’ve been here, I’ve never seen an attorney general just unilaterally go out and start setting policy,” says Wielechowski. “If he went ahead and did it, that to me doesn’t seem appropriate. Many people would say it’s insubordination in fact.”

Wielechowski says he and another Democrat in the House have asked Richards to show them precedent for the action. Wielechowski says if the precedent does not exist, that could affect views on Richards’ confirmation.

“When people voted for the governor, they voted with an understanding that he was not going to get involved in these sorts of issues,” says Wielechowski. “I didn’t want, quite frankly, an unelected bureaucrat making these decisions.”

As the day progressed, one Democrat — Rep. Adam Wool of Fairbanks — who had initially suggested support for the attorney general’s action clarified that he does support marriage equality and misunderstood the nuances of that attorney general’s role as it relates to the court challenge.

And as for Tuck, well, — with all of the heartburn from Democrats over support of the same-sex marriage, the minority leader waffled some and clarified that there were “mixed feelings” in his caucus on the action. He wonders if it was done to shore up Republican support for Richards’ confirmation.

“I believe it’s a political calculation for the executive branch,” says Tuck. “What we have is a maneuver to file the amicus brief, and it may be motivated to win some of the conservatives in the Legislature for confirmation. At this point, I don’t know where that plays out, but I will tell you that we do have some very upset members.”

A spokesperson for the Senate’s Republican majority says the action is unlikely to be a determining factor for her members. Socially conservative members of that caucus say they plan to consider Richards’ record as a whole. Majority Leader John Coghill says he appreciates Richards’ support for the Constitution in this case, but that the attorney general designee still faces an “uphill battle” with him.

On the subject of the marriage ban action, the governor’s office offered a written statement in response: “The confirmation decision is up to the legislature and we are not going to speculate on what any individual legislator might be thinking.”

The Department of Law did not respond to an inquiry on this matter.

Richards needs support from a majority of the Legislature’s members to be confirmed.