BISMARCK – Last summer’s U.S. Supreme Court ruling that legalized same-sex marriage sparked debate among North Dakota lawmakers Tuesday about whether they should update state law to reflect the ruling or leave the state’s nullified ban on gay marriage in place as a public policy statement.
Rep. Kim Koppelman, R-West Fargo, noted that some have drawn parallels between the June 26 ruling and the high court’s 1973 landmark Roe v. Wade decision on abortion. He noted that in the wake of Roe v. Wade, many states didn’t change their laws with regard to abortion.
“And I guess the reasons may have varied, but I think in some cases they felt that this was the public policy statement of the people of that state and their elected representatives,” he said during a meeting of the Legislature’s interim Judiciary Committee. “And so while it may be rendered inoperative for whatever reason, it’s the underlying position there.”
North Dakota’s ban on gay marriage dates back to 2004, when 73 percent of voters approved a constitutional amendment defining marriage only as a legal union between a man and a woman.
State law also defines marriage as a civil contract between one man and one woman and defines a spouse as “a person of the opposite sex who is a husband or a wife.”
U.S. District Court Judge Ralph Erickson declared North Dakota’s same-sex marriage ban to be unconstitutional and invalid three days after the Supreme Court’s 5-4 decision striking down similar bans in other states.
Gail Wischmann, a sergeant with the Cass County Sheriff’s Office in Fargo who married her wife on Dec. 26, said the county is updating its policies to include same-sex couples and the state should do the same.
“My feeling is, if you don’t change the statute recognizing all married couples, then it’s almost like we’re thumbing our nose at the Supreme Court decision,” she told the committee. “And no matter what anybody’s beliefs are, it’s the law.”
Fargo Rep. Mary Schneider, a Democrat and an attorney, questioned whether omitting references to the rights and privileges of same-sex couples in state law could be construed as treating them differently.
Solicitor General Douglas Bahr, who defended the state’s gay marriage ban against two lawsuits filed by same-sex couples, said as long as same-sex couples are treated equally, “I don’t believe there is grounds for a further lawsuit.”
Bahr said it’s the Legislature’s decision whether to leave the law as it is. Voters would have to approve any change to the constitution proposed by lawmakers.
“As long as the U.S. Supreme Court dictate is followed, the law can stay on the books,” he said. “But my only concern with the law staying on the book as written is that it could cause some confusion to those administering the laws and creating potential litigation for them.”
Since June, North Dakota counties have issued about 75 marriage licenses to same-sex couples, but the ruling has had minimal impact on county offices, North Dakota Association of Counties spokeswoman Donnell Preskey Hushka told the committee.
She said 66 licenses issued to same-sex couples accounted for about 1.3 percent of the 4,797 total marriage licenses issued last year. Cass County led the way with 20, followed by Grand Forks County with 12, Ward County with 11 and Burleigh County with six.
However, that data didn’t include an estimated 10 licenses issued to same-sex couples in the first couple of weeks after the Supreme Court’s decision, when a new form was still being developed to reflect applicants’ gender, she said.
County commissioners in three counties – Morton, Stark and Walsh – had to appoint or transfer duties to other staffers after county employees raised personal objections to issuing same-sex marriage licenses, she said.
The 21-member Judiciary Committee plans to continue studying the issue, looking at how other states are dealing with the change and what effects it might have on North Dakota law. Members could make recommendations to the full Legislature, which convenes in regular session in January 2017.
“We have the luxury of waiting a year to see what other states do,” said Sen. David Hogue, R-Minot, the committee’s chairman.