North Dakota legislators are advancing a resolution calling on the U.S. Supreme Court to overturn Obergefell v. Hodges, the 2015 ruling that established marriage equality nationwide.
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The state’s House of Representatives passed the resolution Monday, and it is now in the hands of the North Dakota Senate. It doesn’t carry the force of law, and it would take a marriage equality case coming to the high court for it to revisit Obergefell, although Kim Davis, the infamous anti-marriage equality Kentucky politician, and her lawyers are trying to set one up.
This follows the passage of a similar resolution in Idaho and comes alongside a state representative's plan to introduce one in Michigan. The Michigan one will probably be passed by the state House but not by the Senate, as the latter has a Democratic majority.
House Concurrent Resolution 3013 passed by a vote of 52-40. Republican Rep. Bill Tveit, who introduced it, said same-sex couples shouldn’t be able to marry because they can’t reproduce, an argument that was long used against marriage equality but has now been rejected by most Americans.
“As you are well aware, two cannot conceive or birth a child except for coming together of a female and a male,” Tveit told his fellow lawmakers, according to the North Dakota Monitor. “Based on the laws of nature, it’s just that simple.”
Of course, some different-sex couples can’t conceive children through sexual intercourse either, and many same-sex couples become parents through assisted reproductive technologies, adoptions, or previous relationships with opposite-sex partners.
“If same-sex couples desire a collaborative union of a sort or a legal bonding, they must call it anything but marriage,” Tveit added.
The resolution states, among other things, that “Obergefell v. Hodges invokes a definition of liberty the framers of the United States Constitution would not have recognized” and that “the judicial branch of government is authorized to interpret the law but it does not have the authority to legislate from the bench to enact policy decisions.”
Democratic Rep. Austin Foss, a gay man in his first term in the House and one of three LGBTQ+ North Dakota lawmakers, said the resolution sends a message that LGBTQ+ people are not welcome in the state.
“It’s a message to the world that in North Dakota, if you are like me, you are not welcome here,” Foss said. “If you don’t conform to the ideas that we have about creating a family, you are not welcome here. That’s not North Dakota nice. That’s not even Christian-like.”
“I don’t come into your church, into your home, and force you to relabel your relationship just because I don’t agree with it,” added Foss, who married his partner a year ago.
Some House Republicans voted against the resolution — the chamber has 83 Republicans to 11 Democrats — and Foss said he was grateful for the support of some GOPers.
Marriage equality received some protection from negative Supreme Court action when President Joe Biden signed the Respect for Marriage Act into law in December 2022. The act writes the rights to same-sex marriage and interracial marriage into federal law, assuring that the U.S. government will recognize these marriages and that all states will recognize those performed in other states. It forbids anyone acting under a state law to discriminate based on the gender or race of a married couple. However, it does not require any state to allow same-sex marriages to be performed.
Supreme Court Justices Samuel Alito and Clarence Thomas have said they would like to see Obergefell overturned. When the conservative Supreme Court majority created by Donald Trump overturned the national right to abortion in 2022, Thomas wrote in his concurring opinion at the time that the court should also revisit and overrule decisions that prevent state restrictions on contraception, marriage equality, sodomy, and other private consensual sex acts, calling the rulings "demonstrably erroneous."
While Alito, who wrote the Dobbs ruling, said it was not intended to affect marriage rights, he too has called for the overturning of the marriage equality decision. Trump appointee Amy Coney Barrett has suggested that the definition of marriage should be left to individual states. Chief Justice John Roberts dissented from the majority inObergefell. And the court’s other two conservatives, Neil Gorsuch and Brett Kavanaugh, both Trump appointees, would likely join the others in ruling against marriage equality.
Kim Davis, as clerk of Rowan County, Ky., shut down all marriage license operations at her office shortly after the high court’s marriage equality ruling in 2015 rather than issue licenses to same-sex couples. She cited religious objections to same-sex marriage. She was briefly jailed for contempt of court because she wouldn't obey a judge's order to issue licenses without discrimination. Eventually, a deputy agreed to serve same-sex couples, and then Kentucky enacted a policy taking clerks' names off the licenses.
Davis has been in court appealing a ruling that ordered her to pay damages to a male couple denied a license. She and her attorney Mat Staver of the anti-LGBTQ+ Liberty Counsel have said their ultimate goal is to overturn Obergefell.
