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Celeste, left, and Amber Carlson Allebach outside their Fargo home Friday night, June 6, 2014. They are among seven couples who filed a lawsuit challenging North Dakota's ban on same-sex marriage. (Photo by Kia Farhang/The Forum)

Seven couples challenge ND same-sex marriage ban

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FARGO – Seven couples filed a lawsuit Friday challenging North Dakota’s ban on same-sex marriage and asserting the state must recognize such marriages conducted elsewhere.

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Several of the plaintiffs bringing the suit are Fargo residents, including a university professor, an opera director and a social worker. They argue the state’s ban on same-sex marriage unconstitutionally denies them the rights granted to marriages between men and women.

North Dakota was the last state without a challenge to such a ban. As of Friday, every U.S. state had either legalized same-sex marriage or seen challenges to laws banning the practice.

The suit, filed in U.S. District Court in Fargo, argues that the state’s constitutional amendment defining marriage as between a man and a woman – passed overwhelmingly by voters 10 years ago – is discriminatory.

The suit tells in great detail the stories of the seven couples, some with children and some married in other states.

Again and again, the suit points out rights and benefits withheld from the couples because they can’t be considered married under state law.

Celeste and Amber Carlson Allebach of Fargo had to go through a lengthy, expensive process to get both of them recognized as parents of their two children, and will do so again in the fall for their third.

Ron Ramsay and Peter Vandervort, also of Fargo, can’t file a joint state tax return or get joint health insurance coverage.

And Matthew Elmore and Beau Downey, of Minot, are unable to apply for a Veterans Affairs loan for their first home because the loan operates under state law.

“Although their sexual orientation bears no relation to their ability to contribute to society, gay men and lesbians have been singled out for discriminatory treatment,” the suit charges.

A national wave

Opponents and supporters of the ban said the lawsuit is not a surprise, given the national wave of challenges and same-sex marriage legalization.

Fifty-six percent of Americans support legal same-sex marriages, according to an ABC News/Washington Post poll released Friday. That support skews strongly to those younger than 30.

Same-sex couples can wed in 19 states and the District of Columbia. A judge in Wisconsin ruled that state’s ban on same-sex marriage unconstitutional Friday, and clerks in some counties immediately began issuing marriage licenses to gay couples there.

There’s some evidence North Dakota same-sex couples have been crossing the border to marry in Minnesota, which legalized the practice last year.

A recent check with the Clay County recorder’s office found about two-thirds of applications for same-sex marriage licenses there included at least one North Dakota resident.

Joshua Newville, the Minneapolis attorney representing the North Dakota seven couples, said he’s confident same-sex marriage soon will be legal in North Dakota – either through this lawsuit or a national ruling by the U.S. Supreme Court in its next term.

“The writing is on the wall with this,” Newville said. “Being on the right side of history would be a good thing.”

He said he began getting calls from North Dakota couples almost as soon as he filed a similar lawsuit last month challenging the same-sex marriage ban in South Dakota.

“I knew that someone, if it wasn’t me, was going to bring a case,” he said.

Fight continues

Newville called on North Dakota Attorney General Wayne Stenehjem to join his peers in states like Oregon and Kentucky in not defending the law in court.

Stenehjem said in a statement that it’s his constitutional duty to represent the state when it is sued.

Tom Freier, executive director of the North Dakota Family Alliance, said he hadn’t seen the lawsuit as of Friday afternoon and couldn’t comment on its particulars.

Freier’s group worked to put the constitutional amendment banning same-sex marriage on the ballot 10 years ago, when 73 percent of voters supported it.

But the ban’s constitutionality will now be decided in court, not by popular opinion. Freier said it’s possible a ruling here could clash with the strong message voters sent in 2004.

“We’d certainly be concerned about that,” he said.

Judges striking down same-sex marriage bans despite public support for them have usually said that support doesn’t matter because the laws are discriminatory, said Carl Tobias, a University of Richmond law professor who studies constitutional law.

Freier said he’s worried the recent wave of same-sex marriage legalization has swept aside a public discussion of how allowing gay couples will affect the country financially.

“Those are things that I think today are not fully discussed,” he said.

State Rep. Joshua Boschee, D-Fargo, called that argument a “stall tactic.”

“We don’t need any more research,” said Boschee, the state’s only openly gay legislator. “Gay and lesbian couples have been here for as long as people have been on the earth.”

States legalizing gay marriage haven’t seen any negative repercussions, Boschee said, adding that he’s confident the North Dakota ban will be struck down.

No constitutional ban on same-sex marriage has survived a legal challenge since the U.S. Supreme Court nullified part of the federal Defense of Marriage Act last summer, according to the Human Rights Campaign.

“It’s great to be part of the national conversation,” Boschee said. “I think our judges here … will have similar rulings to what we’ve seen throughout the nation.”

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