By BLAKE NICHOLSON
BISMARCK, North Dakota — State officials in the rural northwestern state of North Dakota are asking a federal judge to dismiss a lawsuit challenging its constitutional prohibition on same-sex marriage.
The state attorney general’s office filed the motion late Tuesday in U.S. District Court in Fargo, and its solicitor general argues in court documents that states have the right to define and regulate marriage.
Similar cases are being heard in courtrooms around America, and gay marriage bans have already been struck down in several other states, including in Kentucky on Tuesday. The fight to legalize gay marriage began in earnest after the U.S. Supreme Court struck down part of the Clinton-era federal Defense of Marriage Act last year.
Same-sex marriage now is legal in 19 U.S. states, including several socially conservative ones, following an impressive legal winning streak for proponents since the Supreme Court last year struck down a key part of the Clinton-era federal Defense of Marriage Act. Recent polls show a majority of Americans support gay marriage. The issue of whether a state can ban it is expected to eventually reach the Supreme Court.
North Dakota voters overwhelmingly approved a state constitutional ban on same-sex marriage 10 years ago. The ballot received 73 percent approval.
Seven couples filed the federal lawsuit last month, making North Dakota the last state with a gay marriage ban to be sued by gay couples. The complaint, filed by Minneapolis attorney Josh Newville, seeks a declaration that the ban is unconstitutional and asks that the state be forced to issue marriage licenses to same-sex couples and recognize gay marriages from other states. The lawsuit claims violations on three issues that are guaranteed in the 14th Amendment to the Constitution: equal protection, due process and right to travel.
A second lawsuit challenging North Dakota’s ban has since been filed in federal court by a Fargo couple legally married in Minnesota.
On Tuesday, a federal judge in Kentucky struck down the socially conservative state’s ban on gay marriage, though the ruling was temporarily put on hold and it was not immediately clear when same-sex couples could be issued marriage licenses.
Also Tuesday, a federal appeals court ordered Indiana to recognize the marriage of a lesbian couple on the death certificate that is issued when one terminally ill partner dies. The ruling came after the court stayed a federal judge’s order setting aside Indiana’s prohibition of gay marriage as unconstitutional. The appeals court did not rule on the overall issue of the constitutionality of Indiana’s gay marriage ban.
Last week, a federal appeals court for the first time upheld that a ruling that overturned another state’s same-sex marriage ban. The state of Utah plans to appeal the appellate court’s ruling.