Yesterday North Dakota filed a motion to dismiss a lawsuit challenging the state’s constitutional prohibition on gay marriage.
Article XI, Section 28 of the state constitution states: “Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”
In the memorandum supporting the motion to dismiss, Solicitor General Douglas Bahr asserts (among other arguments) a federalist defense. In fact, he argues that just as the Defense of Marriage Act (a federal law restricting recognition of gay marriage) was an affront to the right of states to recognize gay marriage, so to would be the courts dismissing laws prohibiting gay marriage.
Which is ironic given that the Supreme Court overturning a section of the DOMA was widely seen as a victory by gay rights activists.
Here’s the crux of his argument:
I am a supporter of gay marriage. I think North Dakota’s existing law is poor social policy. But the federalist argument here is difficult to ignore. Just because a law may be stupid, doesn’t necessarily mean it is unconstitutional.
It frustrates me that the proponents of gay marriage in North Dakota haven’t even attempted a legislative solution. During the Legislative session last year there wasn’t a single bill introduced to change the state’s marriage law, despite the presence of the state’s first openly gay lawmaker (Rep. Josh Boschee, a Democrat from Fargo) serving his first term. Nor has there been any movement toward a ballot measure to amend the state constitution.
As I’ve argued before, I would much rather see North Dakota’s prohibition on gay marriage (which, per the language above, also precludes civil unions) be overturned through the democratic process rather than through judicial fiat. I think popular support for gay marriage in North Dakota is inevitable. I think gay marriage legalized through the will of the people would be less divisive than seeing it legalized through the will of a few judges.
And now there’s the federalist argument. The sovereignty of the states is important. The process matters.