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Federal challenge to North Dakota same-sex marriage ban filed

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The law firm that filed the recent suit challenging South Dakota’s same-sex marriage ban has now filed their anticipated case against the ban in North Dakota. The state had been the only one not facing a same-sex marriage lawsuit.

Bilerico has more:

The Associated Press has just reported that a lawsuit has been filed in North Dakota challenging the constitutionality of that state’s 2004 voter-approved marriage discrimination amendment.

North Dakota’s marriage ban was the last in the country without a legal challenge. With the filing of this case, every state in the Union either has marriage equality or a court case aiming to secure it.

The New Civil Rights Movement got an exclusive look at the complaint:

Charging that “enforcement of the marriage bans impermissibly infringes on Plaintiffs’ choice of whom to marry and their ability to have their marriages recognized, interfering with a core, life-altering, and constitutionally protected choice,” the lawsuit argues the “right to marry the unique person of one’s choice and to direct the course of one’s life in this intimate realm without undue government restriction is one of the fundamental liberty interests protected for all by the Due Process Clause of the Fourteenth Amendment.”

The lawsuit also argues that the “State’s interest in the welfare of children parented by same-sex couples is as great as its interest in the welfare of any other children. The family security that comes from the State’s official recognition and support is no less important for same-sex parents and their children than it is for different-sex parents and their children.”

The complaint can be read here.

Thanks to Kathleen Perrin for these filings


  • 1. davep  |  June 6, 2014 at 12:20 pm

    And the last domino begins to tip…..

  • 2. Rose  |  June 6, 2014 at 12:26 pm

    There is still much work to be done…… a new challenge maybe in Nebraska.

  • 3. Matt227  |  June 6, 2014 at 12:47 pm

    Another six states are being sued by married couples only. Even if the plaintiffs win in those cases, we will not get the right to marry in Alabama, Mississippi, Missouri, Kansas, Tennessee, or South Carolina.

  • 4. Pat  |  June 6, 2014 at 1:33 pm

    It seems to me (but I may be wrong) that:
    – Alabama does have a case targeting the marriage ban itself (Hard v. Bentley)
    – South Carolina also does have a case targeting the marriage ban (Bradacs v. Haley)
    – Conversely, Nebraska only has a case related to foster parents rights (Stewart v. Heineman) as well as a case on divorce (Nicols v. Nebraska)

    Overall, only 5 states do not have a case directly targeting the mariage ban: Mississippi, Missouri, Kansas, Tennessee and Nebraska

  • 5. Matt227  |  June 6, 2014 at 1:53 pm

    Alabama and South Carolina are not being sued by unmarried couples.

  • 6. Matt227  |  June 6, 2014 at 1:54 pm

    Also, Ned Flaherty's list is long, but has many errors.

  • 7. LK2014  |  June 6, 2014 at 12:42 pm

    Hallelujah … keep up the pressure everywhere until everyone across the entire nation is free to marry!

  • 8. Ragavendran  |  June 6, 2014 at 12:45 pm

    Is this the first poll to indicate the tipping point that 50% of Americans agree that gay marriage is a constitutional right? I hope Justices Ginsburg and Kennedy are listening…

  • 9. Bruno71  |  June 6, 2014 at 12:51 pm

    Not sure. This is key too: "In states that ban same-sex marriage, opinions tilt narrowly in support, 50 percent to 44 percent opposed." SCOTUS really has to look at these polls as support increases even in the states where equality is banned. They have to realize that the reason these states aren't moving faster towards equality is because of the odious amendments that made it so difficult to reverse the discrimination without asking "pretty please" of the religious right (who control the GOP and thus the legislatures) in those states.

  • 10. KarlS  |  June 6, 2014 at 1:06 pm

    "pretty please" doesn't work on knuckledragging bigots…a good swift kick in the nads is way better.

  • 11. Craig  |  June 6, 2014 at 2:45 pm

    Especially considering this paragraph from the eighth circuit ruling upholding the marriage ban (quoting Richard Posner who is a judge on the Seventh Circuit):

    "This is not to say that courts should refuse to recognize a constitutional right merely because to do so would make them unpopular. Constitutional rights are, after all, rights against the democratic majority.
    But public opinion is not irrelevant to the task of deciding whether a constitutional right exists. . . . If it is truly a new right, as a right to same-sex marriage would be . . .. [judges] will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential, and institutional issues, including the public acceptability of a decision recognizing the new right."

    This is an excerpt from his 1992 book 'Sex and Reason'.

    A more recent take from Posner is this article written immediately after last year's Windsor ruling:

    I found the article interesting as demonstrating some of the ways some of the judges currently pondering cases might be thinking.

    Another of Posner's articles I came across was a fairly overt deconstruction of Scalia's supposed originalism and textualism which I must admit I found very amusing.

    In this context I think this sort of opinion poll is highly relevant to future rulings.

  • 12. Craig  |  June 6, 2014 at 2:48 pm

    Forgot to add the title of the second article was "The incoherence of Antonin Scalia". Wonderful title…..

  • 13. Richard Weatherwax  |  June 6, 2014 at 2:49 pm

    It is not the justices job to listen to opinion polls. Their job is to interpret the laws, and protect the Constitution. But I hope politicians are listening.

  • 14. Ragavendran  |  June 6, 2014 at 4:23 pm

    100% agree with you. But, sadly that's what they hint at doing when Ginsburg laments that Roe v. Wade was too soon, or when Kennedy said the following in an interview. At least Kennedy laid out both sides of the coin:

    "We come in too soon and too broad, we terminate" the democratic debate, Justice Kennedy said. On the other hand, he said, "suppose you have a person with an injury, a person is hurting. He comes to court seeking relief." The court could say, "You go away for 10 years, then I'll see you," Justice Kennedy said. "That would be maybe better for the court," but the individual might be denied his or her rights in the interim.

  • 15. RobW303  |  June 7, 2014 at 1:59 am

    I've been seeing polls that find the majority of Americans support same-sex marriage for at least 6 months, and other polls in many red states also saying the majority of the state population supports it. The problem is that districting and incumbency inflate the number of legislators and state officials still opposed, and they will fight to the bitter end against the "will of the majority" they so often claim the judges are flouting (as if that will became set in stone by 2006).

  • 16. Ragavendran  |  June 7, 2014 at 6:53 am

    Oh yeah, for sure – I meant whether this is the first poll to find a majority saying that there is a constitutional right to gay marriage. There is a difference.

  • 17. Duster  |  June 6, 2014 at 1:57 pm

    Wisconsin ruling is in. =]

  • 18. JayJonson  |  June 6, 2014 at 2:00 pm

    Where can we find it? Just heard that the ban has been struck down. Is there a stay?

  • 19. Steven H  |  June 6, 2014 at 2:01 pm

    That's good, but was there a gay stay?

  • 20. Michael Scott  |  June 6, 2014 at 2:08 pm

    I saw a snippet that said there was no stay.

  • 21. sam  |  June 6, 2014 at 2:14 pm

    It's a "Friedman ruling" (late friday), so i'd have thought no initial stay…

  • 22. Michael Scott  |  June 6, 2014 at 2:09 pm

    Here's the FB link I found that says no stay, but I can't find a link to an updated article. The link on this one hasn't been updated since 5/28:

  • 23. Bruno71  |  June 6, 2014 at 2:14 pm

  • 24. Duster  |  June 6, 2014 at 2:08 pm

    Ruling Here

  • 25. jdw  |  June 6, 2014 at 2:08 pm


  • 26. Bruno71  |  June 6, 2014 at 2:19 pm

    "Plaintiffs may have until June 16, 2014, to submit a proposed injunction that
    complies with the requirement in Fed. R. Civ. P. 65(d)(1)(C) to “describe in reasonable
    detail . . . the act or acts restrained or required.” In particular, plaintiffs should identify what
    they want each named defendant to do or be enjoined from doing. Defendants may have one
    week from the date plaintiffs file their proposed injunction to file an opposition. If
    defendants file an opposition, plaintiffs may have one week from that date to file a reply in
    support of their proposed injunction"

  • 27. Bruno71  |  June 6, 2014 at 2:21 pm

    "I will address defendants’ pending motion to stay the injunction after the parties
    have had an opportunity to file materials related to the proposed injunction. If the parties
    wish, they may have until June 16, 2014, to supplement their materials related to that
    motion in light of the Supreme Court’s decision in Geiger v. Kitzhaber not to grant a stay
    in that case."

  • 28. Rik  |  June 6, 2014 at 2:35 pm

    Wikipedia is updated:

    Now Michigan sticks out like a sore thumb… or a sore glove

  • 29. mnbob  |  June 7, 2014 at 7:27 am

    ND has money to waste defending this crap. It'll probably take a federal court to overturn it.

  • 30. KarlS  |  June 7, 2014 at 1:39 pm

    There's a lot of Brokeback Oilfield goin' on up there these days…

  • 31. Chemist Direct Healthcare&hellip  |  September 20, 2014 at 10:18 pm

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