



listen live watch live

FARGO – North Dakota’s top leaders have asked a U.S. District Court judge to dismiss a lawsuit challenging the state’s ban on same-sex marriage, outlining its legal case for retaining a prohibition that’s rapidly disappearing in the U.S.

In a motion filed Tuesday to dismiss the case, North Dakota Solicitor General Douglas Bahr argued that the U.S. Constitution leaves it up to individual states to define marriage.

“This case is really about who decides, not who is right in this important policy debate,” Bahr wrote in the brief on behalf of Gov. Jack Dalrymple and several other top state officials named as plaintiffs in the lawsuit. “Under the United States Constitution, the people of North Dakota decide the definition of marriage for the State of North Dakota.”

Seven same-sex couples challenged the state constitution’s ban – which voters approved by a wide margin in 2004 – in early June, making North Dakota the final state to see a challenge to such bans. The couples argued that the state’s ban unconstitutionally denies them the same rights and benefits granted to couples of different gender.

Since the U.S. Supreme Court struck down the federal Defense of Marriage Act last summer, making married same-sex partners eligible for federal benefits, a string of judges have ruled that state prohibitions outlawing gay marriage are unconstitutional.

In all 23 court rulings on the subject in the U.S. since the federal law was struck down last summer, judges have sided with proponents of same-sex matrimony, according to Freedom to Marry, an advocacy group in favor of gay marriage. Same-sex marriage is legal in 19 states, and there are pending rulings legalizing it in 12 more states, according to the advocacy group.

The latest such ruling came Tuesday in Kentucky, where a federal judge struck down the state ban.

But in a 36-page brief supporting the motion to dismiss the lawsuit in North Dakota, Bahr argued that the Supreme Court’s decision in Windsor v. United States affirmed states’ right to define marriage themselves. That case stemmed from a clash between the federal government’s ban on same-sex marriage and New York’s own recognition of gay couples.

The plaintiffs’ “challenge to North Dakota’s definition of marriage invites the Court to make the same error committed by Congress … by creating a federal intrusion on state power,” Bahr wrote. “Windsor affirms that North Dakota’s laws defining marriage deserve this court’s respect and deference.”

In its brief, the state outlined some reasons why it might rationally want to outlaw same-sex marriage.

Though it grants there is scientific evidence on both sides of the debate, Bahr argued that states may believe heterosexual couples are more suitable for procreation and childrearing than same-sex couples.

The seven couples challenging North Dakota’s ban also asserted the state must recognize same-sex marriages performed in other states. Nineteen states, including Minnesota, and Washington, D.C., recognize same-sex marriage.

But the state argued that claim is wrong, because North Dakota’s law does not “treat any of the plaintiffs differently from any other North Dakota resident.”

Bahr also argued that the state may want to take a “wait-and-see approach” as a wave of new laws and judicial decisions in other states legalize gay marriage.

“No society has yet had a generation’s worth of experience permitting same-sex marriage. Other states’ experience with same-sex marriage could provide valuable practical data about the effects of same-sex marriage,” Bahr wrote. “North Dakota could rationally decide to wait until it obtains more information about the effects of same-sex marriage before deciding to permit it in North Dakota.”