Alaska AG joins Supreme Court brief saying transgender bias isn’t illegal

Alaska has joined more than a dozen other states asking the U.S. Supreme Court to uphold the rights of a Michigan funeral home that fired an employee for coming out as transgender. It’s one of several out-of-state controversies Alaska Attorney General Kevin Clarkson has lent the state name to. Some Alaskans wish he wouldn’t.

The amicus or “friend-of-the-court” brief filed last week argues that being transgender isn’t protected by a federal law that bans sex discrimination in the workplace.

In the case, an attorney for the owner of the Michigan funeral home argued in 2017 that his client is a religious man whose business is also his ministry.

“He operates it consistent with his faith, including his belief that sex is an immutable gift from god,” said attorney Doug Wardlow, who is associated with the Alliance Defending Freedom.

Clarkson acknowledges the Michigan case raises important social issues, but he said the state’s reason for getting involved is a matter of legal principle: To not stretch federal anti-discrimination laws to cover a status he says Congress did not include.

“My decision, our decision, to get into this particular amicus brief was based upon what we think is the proper process for amending a federal statute,” he said.

Gov. Mike Dunleavy and Attorney General Kevin Clarkson discuss the governor’s proposed budget and Permanent Fund Dividend related constitutional amendments with reporters at a press conference held at the Capitol, Jan. 30, 2018. (Photo by Skip Gray/360 North)

The conservative Alaska Family Council applauded Clarkson for signing on, but for a different reason.

“By signing the brief, AG Clarkson is sending a clear message that Alaska will not be bullied into a political agenda that… compels private businesses to violate their conscience,” Council director Jim Minnery wrote it in his newsletter.

Rector Michael Burke of St. Mary’s Episcopal Church in Anchorage said the brief Clarkson signed doesn’t reflect the values of Alaska faith community Burke is part of.

“As an ordained minister and a very committed Christian, it’s very, very important to me to have the freedom, without government interference, to express my religious beliefs,” Burke said. “But also, when I step into the public marketplace, I need to play by the same fair play rules as everyone else.”

Among other friend-of-the-court briefs, Attorney General Clarkson recently signed one supporting the Trump administration’s move to end the program known as DACA that allows temporary work permits for undocumented immigrants who arrived as children.  He signed another in a Second Amendment case that challenges a federal ban on interstate handgun sales.

Former Alaska Attorney General Bruce Botelho, who was the top lawyer for governors Wally Hickel and Tony Knowles, said state A.G.s used to mainly reach out to their counterparts through the National Association of Attorneys General when they had a friend-of-the-court brief they wanted other states to sign.

“Historically, it’s largely been in the areas of consumer protection, for example, or where there was some intimation that prerogatives of the state were being threatened by some agency action, or act of Congress,” Botelho said. “In more recent years the fraternity/sorority of attorneys general has become much more partisan.”

The late 1990s saw the rise of the Republican Attorneys General Association, and a few years later, its Democratic equivalent.

Unlike Alaska, most states elect their A.G.s. They have to raise campaign money and they often go on to run for higher office. Joining hot-button cases is one way to show your base, and national donors, which side you’re on.

Botelho said he wishes Attorney General Clarkson had steered clear of the brief arguing that workers can be fired for being transgender, because it’s so divisive.

“There are obviously some Alaskans who will applaud the state lending its name to a brief taking that position,” Botelho said. “And there will be many Alaskans who will be embarrassed and will condemn the action.” 

But Botelho understands the power of core values. If, when he was A.G., he’d been asked to sign an amicus brief in favor of same-sex marriage, for instance, Botelho said he would have urged Gov. Knowles to let him sign.