Alaska AG nominee Cox declines to commit to defending same-sex marriage

Alaska Attorney General nominee Stephen Cox declined to firmly commit to defending same-sex marriage rights if challenged, raising concerns among LGBTQ lawmakers during a confirmation hearing Monday.

Cox told the House Judiciary Committee he has no plans to challenge same-sex marriage but stopped short of promising to defend it if others bring legal challenges. The exchange came during questioning from Representative Andrew Gray, an openly gay legislator who chairs the committee.

"There are no anticipated plans within the Department of Law to challenge same-sex marriage at all," Cox said.

But when pressed on whether he would defend same-sex marriage if challenged, Cox did not make a direct commitment. Gray noted Cox had similarly avoided the question during testimony before the Senate State Affairs Committee the previous week.

Gray said he worries LGBTQ Alaskans may lose rights his generation gained. "There are reasons to have concern that LGBTQ kids will grow up in a world where they do not have the freedoms that I had," Gray said. "They may not be able to serve openly in the military. They may not be able to marry the person they love. They may not be able to have children and have families."

Gray referenced his own experience serving openly in the military, marrying his husband, and adopting a son. He was elected to the Alaska House in 2022.

The questioning focused on whether Cox would defend same-sex marriage if the U.S. Supreme Court reconsidered its 2015 Obergefell decision that legalized same-sex marriage nationwide. Justice Clarence Thomas wrote in a concurring opinion to the 2022 Dobbs decision overturning Roe v. Wade that the court should reconsider precedents on contraception access, same-sex relationships, and same-sex marriage.

"Justice Clarence Thomas argued in a concurring opinion with Dobbs that the Supreme Court, quote, 'should reconsider its past rulings codifying rights to contraception access, same-sex relationships, and same-sex marriage,'" Gray said, reading from the opinion. "Thomas wrote that the justices should, quote, 'reconsider all of this court's substantive due process precedents, including Griswold, Lawrence, and Obergefell.'"

Cox said he has "zero expectation" the Supreme Court will overturn those precedents. "I would expect that at most you would have one or two US Supreme Court justices who would be open to reconsidering those cases. But I do not see any risk of those cases being disturbed," Cox said.

Gray compared Cox's answer to statements made by Justice Neil Gorsuch during his confirmation hearings about respecting precedent. "Of course, we saw how that turned out with Roe v. Wade," Gray said. "So, you know, folks who say they are not here to overturn precedent sometimes change their opinion over time and are willing to overturn precedent."

Representative Genevieve Mina said she shares Gray's concerns. "I really empathize with a lot of the anxiety that a lot of the LGBTQ community is feeling right now," Mina said.

Mina asked how Cox would reconcile Alaska's constitutional provision limiting marriage to one man and one woman if someone challenged same-sex marriage in court. Alaska voters approved that provision in 1998, but it has been unenforceable since the Obergefell decision.

"I would assume that after the Obergefell decision from the U.S. Supreme Court, that provision of the Alaska Constitution is unenforceable and dead law," Cox said.

Cox told lawmakers his role as Attorney General is to uphold the law for all Alaskans. "My fidelity is to the law," Cox said. "I will protect and defend and enforce the laws that you pass every day and all day, regardless of my personal opinions about those laws."

Gray said he was not fully reassured by Cox's answers. "I think there are some folks who believe that the LGBTQ rights movement has gone too far, and that may not be you, but there are some that believe that, and they want to claw back some of the rights and privileges that we have achieved," Gray said. "And in America today, I would say there is a lot of stress within that community."

The committee also heard public testimony opposing Cox's confirmation. Former Attorney General Bruce Patello testified that Cox has made Alaska "a serial participant in national ideological litigation" by joining more than 110 cases around the country in his first seven months in office.

The committee took no action Monday. Cox's confirmation requires approval by a majority of the full Legislature meeting in joint session.