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ND same-sex marriage ban challenge may be coming

FARGO — The nationwide flood of court cases challenging states’ bans on same-sex marriage may be on its way to North Dakota.

A Minneapolis-based attorney working with a South Dakota couple to challenge that state’s ban said he’s discussed a potential lawsuit with several same-sex couples in North Dakota. And state Rep. Joshua Boschee, who became North Dakota’s first openly gay legislator when he was elected in 2012, said he knows of several couples who have approached lawyers.

But they say no one is ready yet to step forward and file a lawsuit against the state’s constitutional amendment that defines marriage as between a man and woman, which North Dakota voters passed by a huge margin in 2004. Behind the scenes, lawyers and gay rights advocates are still weighing the options to achieve their goal of legalizing same-sex marriage in North Dakota.

Boschee attributed the hesitance to the same reason he and others believe North Dakota will soon be one of just two states – along with Montana – where couples haven’t challenged gay marriage bans: fear of backlash in a state that offers little, if any, protection against discrimination based on sexual orientation.

“It’s challenging to move forward if they don’t know their job will be protected,” Boschee, a Fargo Democrat, said of gay couples in North Dakota. “The state hasn’t shown it’s willing to support lesbian, gay, bisexual and transgender people.”

A U.S. Supreme Court decision last summer set in motion the tide of lawsuits against same-sex marriage bans at the state level. Judges in nearly a dozen states have overturned bans since the Supreme Court’s U.S. v. Windsor ruling, which gave full federal recognition to same-sex marriage. In many of those instances, most recently in Idaho, the decisions were suspended or stayed pending an appeal.

Seventy-three percent of North Dakotans voted to ban same-sex marriage in the state’s constitution in 2004. There’s little recent polling available on where the state stands today, but Joshua Newville, the Minneapolis attorney, said he thinks it’s “drastically different.”

Newville said he’s not sure there’s a single reason why North Dakota hasn’t yet seen a court challenge to its ban. But part of it, he said, is timing.

In Minnesota, the issue was kick-started when state legislators put a similar constitutional amendment on the ballot in 2012. After that measure failed, gay rights advocates and their supporters in the Legislature pounced and passed a bill legalizing same-sex marriage the next year.

“A lot of it depends on feeling like the time is right,” Newville said.

And though his primary focus is on the case in South Dakota, he said of North Dakota and the same-sex couples he’s talked with: “We’re very seriously considering it.”

Mara Morken Fogarty moved to Moorhead, Minn., with her partner years ago, and the couple got married soon after Minnesota’s new marriage law took effect. But she remains deeply involved in the fight for same-sex marriage in North Dakota – “a very hard state to make that happen in,” she acknowledged.

If it does, Morken Fogarty said she thinks it’s more likely to be the result of another U.S. Supreme Court decision. With dozens of state cases and appeals piling up in the courts, she said it’s only a matter of time before the nation’s highest court steps in to decide the issue, nationally and finally.

“I think the community in general is very hopeful,” she said, before adding, “but doesn’t have the highest of expectations for North Dakota just yet.”

Kyle Potter
Kyle Potter is an enterprise reporter at the Forum. He came to Fargo-Moorhead in May 2013 after stints at the Associated Press, the Las Vegas Review-Journal, the St. Paul Pioneer Press and the Minnesota Daily. 
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