(RNS) North Dakota on Friday (June 6) became the last of 31 states to have its ban on same-sex marriage challenged as unconstitutional.

Seven couples in North Dakota are challenging the state's constitutional ban on gay marriage. Creative Commons image by Bobak Ha'Eri

Seven couples in North Dakota are challenging the state’s constitutional ban on gay marriage. Creative Commons image by Bobak Ha’Eri

 This image is available for web and print publication. For questions, contact Sally Morrow.

The lawsuit was filed hours before a federal judge in Wisconsin struck down a similar ban in Wisconsin.

In North Dakota, seven couples filed suit in federal court, arguing that the 2004 voter-approved constitutional amendment — which limits marriage to heterosexuals — violates the equal-protection and due-process guarantees of the U.S. Constitution. The suit additionally says the state must recognize marriages of same-sex couples who wed in other states, the so-called “right to travel” also outlined in the 14th Amendment.

Since the June 2013 U.S. Supreme Court decision striking down the section of the federal Defense of Marriage Act that defined marriage as between a man and a woman, judges nationwide have nullified several such bans.

North Dakota Attorney General Wayne Stenehjem’s office said it could not comment on the specifics of the challenge because it had not yet seen the lawsuit.

“It is important to remember, however, that it is the constitutional duty of the attorney general to represent the state when it is sued,” Stenehjem said in a statement. “Ultimately, only the Supreme Court can determine whether North Dakota’s enactment is constitutional or not.”

The North Dakota Family Alliance, which campaigned for the marriage amendment, also had not seen the suit Friday afternoon but plans to defend the measure, executive director Tom Freier said. He said his group would likely coordinate with the attorney general and file a friend-of-the-court brief.

In a statement, Freier said the alliance “will stand on the North Dakota constitution and with the 73% of the people who voted in 2004 to permanently place a definition of marriage in our constitution.

“For centuries marriage between one man and one woman has served as the foundation for the family and society and has demonstrated its benefit for the well-being of children. It must be defended and preserved.”

The lawsuit was filed by Josh Newville, a Minneapolis attorney who also went to court in South Dakota on behalf of six same-sex couples.

“Same-sex couples are identical to different-sex couples in all characteristics relevant to marriage,” the suit states. “Without any legitimate governmental interest, North Dakota has targeted a minority of individuals for discrimination on the basis of sexual orientation.

“The state 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,” the suit continues, adding that the couples are subject to “an irreparable denial of their constitutional rights.”

Same-sex couples can now marry in 19 states and the District of Columbia, and legal challenges have frozen prohibitions in other states during appeals. Freedom to Marry, which had led the campaign for marriage equality, is tracking the litigation.



  1. “In a statement, Freier said the alliance “will stand on the North Dakota constitution and with the 73% of the people who voted in 2004 to permanently place a definition of marriage in our constitution.

    “For centuries marriage between one man and one woman has served as the foundation for the family and society and has demonstrated its benefit for the well-being of children. It must be defended and preserved.””

    The (frankly terrible) arguments haven’t changed from state to state. This should be an easy victory for marriage equality.

    The statements in support of the ban miss a whole bunch of important things:
    1. All discriminatory laws were passed by a majority vote. This does not mean they pass muster under the 14th Amendment.

    2. There is no reason to believe the “demonstrated benefit” of marriage to the well being children would not also apply to gay couples. The statement logically and rationally would be a support of marriage in general, but not a denial of marriage equality, nor a support of heterosexual marriage as the sole option.

    3. There is nothing in of the definition of marriage as one man and one woman which has a rational and secular basis for being defended to the point of denying marriage rights to gays. Tradition alone is not ever going to be a proper answer in of itself

    As I have said before, the anti-marriage equality people undermined their own cause out of maliciousness and spite.The insistence of trying to officially foreclose the possibility of gay marriage being accepted by affirmative law, all but ensured it will happen.

    Without the bans, there would be no judgments. Marriage equality would have proceeded very slowly (or not at all) had it required the passage of various bills accepting it. Given what happened to the ERA in the 70’s there is little reason to believe that outcome would have been so favorable.

  2. The right wingers who have fought to suppress equality and freedom have given the gays momentum Religious grouos who have campaigned against equality have likely caused temselves damage Few people want to be associated with groups which openly discriminate This is especially the case where such groups would not be affected by theresolution of the issue I would not be surprised if religious groups experience decreased membership as a direct result of how they conducted themselves in this debate At no time have gays sought to deny or remove anyone freedom to life their life equally with others gays are only wanting the same legal rights and treatment of any other families Few of us care anything about whichever religious belief you choose But we do stand up against you imposing your beliefs on to others through legal processes.

    • “…against imposing your beliefs on to others through legal processes”

      I just want that traitor president ***Obama*** to stop imposing his RADICAL GAY THEOLOGY beliefs on American Christians. The guy doesn’t even know the meaning of constitutional religious freedoms.

      America voting for Obama in 2012, was equivalent to national attempted suicide. And the jury is still out as to whether the attempt succeeded!

      • Doc, over and over again, you have proven you don’t know the meaning of “religious freedom”.

        Religious freedom never entailed getting everyone else to abide by the dictates of your faith. Religious freedom never gives you the right to harm others.

        Nobody’s faith is subject to your opinion. On numerous occasions you have attacked the right of free exercise of faith by sects you deemed “Not really Christian”.

        Although you have objections to marriage equality, it doesn’t rise to the level where it can override notions of equal protection under the law. Nor do your objections have a rational or secular purpose required by all laws.

      • No one is imposing anything on anyone. We’re giving the same treatment to gay people as us straight people.
        You don’t have to get married to a man or woman if you don’t want to. Just don’t expect everyone to abide by your group’s personal beliefs.
        Besides, if I wanted to, I could go down to city hall with a woman and get a marriage licence. No religion involved. If a heterosexual couple can get married without gods involved, then why not gay people?

      • Doc..you are the one that is wrong. When you passed this unconstitutional amendment you just stomped all over my religious rights. See my church and faith marries gays, lesbians and their families. But you did not even stop and think of me. That’s ok…I forgive you but our courts won’t.

      • @Doc Anthony,

        This is the heart of Christian fascism:

        “What is good for Jesus is good enough for me – AND YOU, TOO!”

        If only Christians could keep their Jesus to themselves and be happy. Unfortunately, you apparently cannot rest until we all are forced to agree with YOU whether we like it or not!

        In God we Trust
        One Nation Under God
        God God God!


  3. The North Dakota Attorney General – Wayne Stenehjem has a brother Allan who is gay. I hope sides with Equality and NOT bigotry and hate. Last year – over Christmas – Wayne invited everybody over to his house for the holiday – everyone EXCEPT his gay brother Allan! Wayne even invited Allan’s ex-wife!

    • He has a duty to seek appeal for the case barring the governor telling him not to pursue it any further (like what happened in NJ). It doesn’t make a difference. On its facts, the State does not have much of a case.

  4. I keep coming across all these articles about judges striking down these horrible and discriminating bans. I’m so pleased to see that most of the responses from the public are in favor of equality. Times have changed. The people who are against marriage equality today are no better then others were against biracial marriage. At the time that was also considered “not traditional” marriage either. As a gay man who lives in an equality state (Minnesota) I’m happy to know that someday when I meet the right man I can get married.

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