Clarence F. “Rick” Olson, Fargo, Published July 27 2013
Letter: Marriage is in ND ConstitutionLenny Tweden’s letter in The Forum, “Now focus shifts to North Dakota” (July 20), begs for a response.
Minnesota will join the handful of states that allow same-sex couples to legally marry as of Aug. 1. Tweden in his letter said he will begin doing everything he can to overturn North Dakota’s ban on same-sex marriage. The people of North Dakota have set the bar high on this subject, and for good reason. Getting the ban overturned would be easier said than done.
A little history
North Dakota has an amendment enshrined in the state constitution that for all practical purposes bans same-sex marriage in the state. There is also statutory law in the North Dakota Century Code that bans same-sex marriage.
In the November 2004 general election, the people of North Dakota overwhelmingly ratified an amendment to the state constitution, which had been proposed by the state Legislature during the 2003 regular session. The ballot measure to define marriage in the constitution passed by almost 74 percent of the vote. It received 223,572 “yes” votes (73.23 percent) to 81,716 “no” votes (26.77 percent).
Same-sex marriage banned
This amendment placed a definition of marriage into the constitution. As a result, Article XI, Section 28 of the North Dakota Constitution declares: “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 addition to the constitutional prohibition, Section 14-03-01 of the North Dakota Century Code declares: “What constitutes marriage – Spouse defined. Marriage is a personal relation arising out of a civil contract between one man and one woman to which the consent of the parties is essential. The marriage relation may be entered into, maintained, annulled, or dissolved only as provided by law. A spouse refers only to a person of the opposite sex who is a husband or a wife.”
Easier said than done
There are people who would like to see the same-sex marriage ban repealed in North Dakota. Since the practice is banned in the state constitution, it would take another constitutional amendment to repeal the ban that was approved by the voters in 2004.
Proposing an amendment to the North Dakota Constitution can be a long process. An amendment to the constitution can be proposed by a concurrent resolution of the Legislature. The governor has no veto authority over a concurrent resolution. A two-thirds affirmative vote of both the House of Representatives and the Senate then puts the proposed amendment on the ballot. An amendment can also be proposed directly by the people via the initiated measure process.
In either process, in order for a proposed constitutional amendment to be ratified, it must be voted on by the people of North Dakota at an upcoming statewide election or at a special election called for that purpose. Simple majority wins.
If a sufficient number of signatures are turned in by the deadline and are validated by the secretary of state, the proposed amendment would then appear on an upcoming statewide election ballot. Again, simple majority wins.
There’s still more
If the voters were to approve repealing the definition of marriage amendment in the constitution, then there’s still the matter of repealing the section of state law that forbids same-sex couples to marry. Given the current makeup of the Legislature, I don’t see any desire among lawmakers to repeal the law and allow same-sex marriages in North Dakota. Of course, there could be an initiated measure pursued on the subject once the prohibition on gay marriage in the constitution was repealed.
The definition of marriage amendment passed in 2004 by almost 74 percent of the vote. That’s a tall mountain to climb for those who seek repeal. While attitudes and opinions may have changed, I don’t see a majority of North Dakota voters who would vote in favor of repealing the ban on same-sex marriage. I could not support such an effort and would vote against a repeal of the same-sex marriage ban.
Olson is a regular contributor to The Forum’s commentary and opinion pages. Email firstname.lastname@example.org.