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.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.”
The seven couples challenging North Dakota’s ban also asserted the state must recognize same-sex marriages performed in other states.