The Real Missed Opportunity: ND Lawmakers Should Have Repealed Gay Marriage Ban

gay marriage

Earlier this year when lawmakers declined to pass SB2279, an anti-discrimination bill, Governor Jack Dalrymple said they’d “missed an opportunity.”

He was wrong. That legislation was bad policy. But lawmakers did miss an opportunity on gay rights this session.

It seems that this summer America will more than likely see a blanket legalization of gay marriage through judicial fiat. The Supreme Court seems poised to find state laws prohibiting gay marriage to be illegal.

While I like the outcome – laws prohibiting gay marriage are an absolute travesty and an affront to association rights – would that it was coming at the end of a democratic process rather than a judicial one. I feel like the transition to new social eras is more peaceful when rendered as the will of the people rather than the will of judges and lawyers.

Which is why I wish someone had proposed a resolution in the North Dakota legislature this year to repeal the section of the state constitution which defines marriage as between existing only between one man and one woman. Given the rapidly changing views on homosexuality nationally and in North Dakota, I think it could have passed. Not just in the Legislature, but on the ballot as well where amendments to the state constitution must be approved.

After all, democracy is how the state previously rid itself of backwards laws seeking to prohibit and even punish homosexual acts.

…democracy is how the state previously rid itself of backwards laws seeking to prohibit and even punish homosexual acts.

From 1862, when our state was part of the Dakota Territory, until 1927 North Dakota saw a number of laws and court rulings restrict all manner of private sexual activities including homosexual sex acts. In fact, in 1927 the state expanded its progressive sterilization laws – which at the time included mentally and physically disabled prison inmates – to include “habitual criminals, moral degenerates and sexual perverts.”

But in the 1960’s and 1970’s these laws were reversed. Not by the courts – the Supreme Court has upheld forced sterilization laws in Buck vs. Bell with no less a progressive legal icon than Oliver Wendell Holmes Junior writing the majority opinion – but by  bipartisan majorities of elected policymakers.

In 1965 the sterilization law was repealed by a Republican state Senate and a Democrat state House. Governor William Guy, a Democrat, signed the repeal into law.

In 1973 the state legalized private, adult, and consensual homosexual relationships. The legislation was passed by a Republican-controlled Legislature and signed into law by Governor Art Link, a Democrat.

North Dakota’s past move towards treating homosexuals like human beings was the result of bipartisan majorities working together through the democratic process to reform the law.

If only North Dakota could enter the age of legal homosexual marriage the same way.

The window for that has probably passed, unfortunately. Lawmakers will wrap up their 2015 session this week, and by the time they meet again in 2017 the courts will almost certainly have weighed in and struck down our state’s constitutional ban on gay marriage. They could still do a symbolic amendment of the state constitution, but it would lack the symbolism of acting before SCOTUS weighs in.

The inevitable court ruling will breed resentment among those holdouts who still believe we ought to ban, by force of law, consensual adult relationships between homosexuals. They will inveigh against the tyranny of the judiciary, and their dissatisfaction with the outcome will inspire activism for years to come.

But I suspect they would have been more at peace with the outcome had it been the “will of the people.” Plus, North Dakota’s lawmakers could prove that they meant it when they said that voting down SB2279 wasn’t about animosity towards gays.

Process matters. I won’t go so far as to say the “end” of legal gay marriage doesn’t justify the “means” of challenging laws prohibiting it in the courts, but I think the democracy could have given us a shorter path to the tranquil acceptance of homosexual lifestyles in our society.

And I think that’s what most of us want on this issue. The militants on one side of this issue still want to treat homosexuals like second class citizens, and the militants on the other side want to use the force of law to mandate acceptance of homosexuals.

But I think those of us in the middle – which is most of us – just want a little live and let live.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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