Same-sex marriage (SSM)
2004 to now: North Dakota
2004-NOV: North Dakota voters approve Constitutional Measure 1 to prohibit same-sex couples from marrying:
The North Dakota Definition of Marriage Initiative, (a.k.a. Constitutional Measure 1), appeared on the state's ballot on election day, 2004-NOV-2 . It was approved by a vote ratio of 73% to 27% -- almost 3 to 1. It amended the state Constitution to restrict marriage to the voluntary union of one man and one woman. Although it was promoted as a simple ban on same-sex marriages, it also banned civil union legislation which might be proposed to grant same-sex couples rights and benefits similar to marriage. The ballot read:
"This constitutional measure would add a new section to article XI of the North Dakota Constitution, as follows:
Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect." 1
At the time, national polls indicated that opposition to same-sex marriage was about 55% with support about 40%. Thus, the voters in North Dakota were considerably more conservative than voters nation-wide.
In addition to the constitutional ban, North Dakota statutes also ban marriage by same-sex couples.
Level of support for SSM in North Dakota, mainly from public opinion polls:
There are very few polls or other indicators of support and opposition to SSM among the North Dakota population:
- 2004: The voting for Constitutional Measure 1 showed that only 27% of the voters in the state opposed a ban on same-sex marriage; 73% favored a ban
- 2012: The Williams Institute estimated support in the state at 40% with a margin of error (i.e. a degree of uncertainty) of ±5.5 percentage points. 2
- 2012: Pew Research estimated support in the Midwest -- including North Dakota -- is 46% in favor and 44% opposed. 3
- Undefined time interval: During 2014-JUL, the ISideWith web site reported 59% in favor of SSM. However, this is not a reliable figure, because persons of any age and location are allowed to vote for this North Dakota poll. Also, the web site collected data over an unknown length of time, so it is uncertain what the result was for any specific time. 4
We suspect that by mid-2014, there would be a small plurality, but not a majority, of adults in favor of marriage equality, perhaps 48% in favor to 42% opposed.
2014-JUN-06: Status of same-sex marriage in North Dakota. Lawsuit filed:
By the the middle of 2014-MAY, there were only three U.S. states that both banned same-sex marriage and did not have an active lawsuit in a state or federal court to overturn the ban. North Dakota was one of these states.
Later in May, lawsuits were launched in two of the three states.
Finally, on JUN-06, seven same-sex couples filed a lawsuit in federal District Court in Fargo, North Dakota. It challenges the validity of Constitutional Measure 1 -- the ban on marriage for same-sex couples -- and the state's marriage act that also banned such marriages. As a result of this filing, there are no states left in the U.S. with marriage bans that do not also have a lawsuit challenging their ban.
The seven couples are seeking the right of themselves and other same-sex couples to either:
- Marry in North Dakota, or
- Marry elsewhere and have their out-of-state marriage recognized by North Dakota.
On the same day, Attorney General Wayne Stenehjem (R) issued a statement saying in part:
"Ultimately, only the Supreme Court can determine whether North Dakota’s enactment is constitutional or not."
The North Dakota case was filed by Josh Newville, an attorney from Minneapolis, IN. It is called Ram say, et al. v. Dalrymple. Ramsay is the lead plaintiff. Jack Dairymple (R) is the Governor of the state. Newville had filed a similar case during the previous month involving six same-sex couples in South Dakota. 5
The plaintiffs' complaint states that same-sex couples are subjected to:
"... an irreparable denial of their constitutional rights."
They further assert that the state of North Dakota:
".... will incur little to no burden in allowing same-sex couples to marry and in recognizing the lawful marriages of same-sex couples from other jurisdictions on the same terms as different-sex couples." 5
The prospects of this case look excellent for these couples, because there are currently over 70 similar cases in state and federal courts. All of the court rulings involving marriage by same-sex couples that have been released between mid-2013 and mid-2014 have favored of marriage equality. They have all been based on the due process clause and/or the equal protection clause of the 14th Amendment of the U.S. Constitution. These clauses require the federal and state governments to treat people -- and thus couples -- equally.
However, this lawsuit may turn out to have only symbolic value. As Attorney General Stenehjem said, only the U.S. Supreme Court will be able to make the final decision on whether same-sex couples should be allowed to marry in North Dakota. There are currently over 70 active lawsuits similar to the one in North Dakota, and a few are at the stage where they can be appealed to the U.S. Supreme Court in the near future. It is highly probable that one or more of those cases will be granted certiorari (the right to appeal) by the high court, be heard before that court during early 2014 and ruled upon by 2014-JUN. It is unlikely that the North Dakota case can advance quickly enough to be part of that process.
During July, Solicitor General Doug Bahr asked that the case be dismissed on the basis that individual states have the responsibility and right to define marriage as they wish. He appears to imply that a state's constitution or statutes can violate the equal protection and/or due process clauses of the 14th Amendment of the U.S. Constitution, and still be ruled constitutional. That is, the U.S. Constitution is not the ultimate law of the land. That role is determined in each state by the vote of the people. This is called the "tyranny of the majority" and was a major concern of the founding fathers. It is also rejected by almost all constitutional experts. More details.
On 2014-JUL-22, Attorney Newville filed a motion asking a District Court judge to rule on whether marriages by same-sex couples is legal in the state. He said:
"We are seeking an order from a district judge that declares marriage equality the law of the land in North Dakota. ... We all agree that North Dakota denies loving, committed same-sex couples recognition of their marriages. That is not in dispute. This is a constitutional issue and North Dakota is in violation of the constitution by refusing to marry couples and to recognize marriages from other states and jurisdictions."
Plaintiff Celeste Carlson Allebach said that she and her wife Amber are:
"... very excited with this filing. We’re optimistic and hope to get a ruling before the birth of our coming child so that our family will be recognized as equal under the eyes of North Dakota law and both of us can be listed as parents on our child’s birth certificate."
Comments by Carl Tobias, Williams professor of Law at the University of Richmond,
He expects that the U.S. Supreme Court will revisit same-sex marriage. He noted that since the decision of that court in 2013-JUN in the DOMA case:
"... we have had a stream of rulings that have favored plaintiffs and I think we are likely to see the same in North Dakota." 6
Tobias noted that:
- During August, the U.S. 6th Circuit Court of Appeals will hold hearings on gay marriage cases in Ohio, Kentucky, Michigan and Tennessee.
- Later, the U.S. 5th Circuit Court of Appeals will hear cases involving Louisiana, Mississippi and Texas.
Since the 5th Circuit is one of the most conservative courts in the U.S., it might well vote to uphold the constitutionality of same-sex marriage bans in those states. Whenever U.S. Circuit Courts disagree, the U.S. Supreme Court is almost certain to grant certerari in order to resolve the conflict. In all probability, the high court would hold hearings and release a ruling that will either create marriage equality across the entire country or deny marriage equality in all states.
Tobias speculated that:
"In all likelihood one of the courts [of appeal] could vote against same-sex marriage.
He said that he is surprised that so far decisions had been:
"... so uniform and so fast. The decisions are building on one another and finding earlier arguments persuasive." 6
As long as the U.S. Circuit Courts agree on a specific topic, the U.S. Supreme Court is often reluctant to intervene by granting certerari and hearing a case. But if one or more such courts delivers a ruling in support of a same-sex marriage then it is likely that the U.S. Supreme Court would respond positively to a request for an appeal.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Official Ballot Language for the measure appearing on the election ballot, November 2, 2004" North Dakota Secretary of State, at: http://results.sos.nd.gov/
- "Public support for marriage for same-sex couples by state," Williams Institute, 2013-APR, at: http://williamsinstitute.law.ucla.edu/
- Behind Gay Marriage Momentum, Regional Gaps Persist," Pew Research, 2012-NOV-09, at: http://www.people-press.org/
- "Do you support the legalization of same sex marriage?," ISideWith.com, as read on 2014-JUL-25, at: http://www.isidewith.com/
- "North Dakota Makes 31: Every State with a Marriage Ban Now Has a Court Challenge," Human Rights Campaign, 2014-JUN-06, at: http://www.hrc.org/
- Dominic Rushe, "Lawyer calls for North Dakota decision on same-sex marriage ban," The Guardian, 2014-JUL-23, at: http://www.theguardian.com/
Copyright © 2014 by Ontario Consultants on Religious Tolerance
Original posting: 2014-JUL-25
Latest update: 2014-JUL-25
Author: Bruce A. Robinson
Copyright © 2014 by Ontario Consultants on Religious Tolerance
Latest update: 2014-JUL-
Author: Bruce A. Robinson