North Dakota could be first state to ask SCOTUS to repeal same-sex marriage

• North Dakota lawmakers are close to becoming the first state to formally ask the U.S. Supreme Court to overturn the 2015 Obergefell v. Hodges decision that legalized same-sex marriage nationwide. The state’s resolution passed the House 52-40.
• The resolution calls for restoring the definition of marriage as a union between one man and one woman, but critics, including the ACLU, argue that it could violate the establishment clause of the U.S. Constitution.
• A recent poll shows that 56% of North Dakota voters support the 2015 Obergefell ruling, while 36% favor efforts to overturn it.

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North Dakota lawmakers are close to making their state the first to formally ask the Supreme Court to overturn the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide.

North Dakota’s resolution, known as House Concurrent Resolution 3013, asks the Supreme Court “to restore the definition of marriage to a union between one man and one woman.”

The bill, which passed the North Dakota House with a 52-40 vote last month, is sponsored by Republican state Rep. Bill Tveit. It still needs Senate approval before heading to the governor’s desk.

Cody Schuler, the advocacy manager of the ACLU of North Dakota, told The Associated Press that the resolution could infringe upon the U.S. Constitution’s establishment clause.

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“Marriage defined as ‘one man, one woman’ is a particular religious view,” Schuler said. “It is not held by all religions, all societies or by nonreligious people, and so therefore it is dangerous to be making that kind of statement because it puts legislators on record as to how they might vote on a law.”

Idaho’s House of Representatives passed a similar resolution in February demanding that the Supreme Court reverse its decision in Obergefell.

However, North Dakota’s resolution would be the first measure of its kind to clear both chambers of a state legislature.

Back and forth before Obergefell

Before the Supreme Court’s 2015 decision, the legal fight over same-sex marriage went back and forth between state courts, federal courts and the Supreme Court with cases involving conflicting rulings about the legality of same-sex marriage bans. 

Some courts struck down bans, while others upheld them, leading to a mix of conflicting laws across the country.

The Supreme Court’s involvement was the final word, essentially ending the legal uncertainty around same-sex marriage in the United States. 

Reaction to Justice Clarence Thomas’ writing on Obergefell

Justice Clarence Thomas expressed interest in revisiting Obergefell after the court overturned the 1973 Roe v. Wade abortion rights decision in the 2022 Dobbs case.

Thomas said in his concurring Dobbs opinion, that the court “should reconsider all of its substantive due process precedents” that enact rights to contraception access, same-sex relationships and same-sex marriage.

His statement sparked widespread concern and criticism, with many fearing a broader attack on fundamental rights. 

Former President Joe Biden condemned this view, warning that if the court were to overturn Obergefell and other rights, it would be a serious threat to personal freedoms and civil rights. 

Biden reiterated his belief that the rights secured by Obergefell and similar decisions should not be rolled back, describing it as a potential “step backward.”

LGBTQ+ advocacy group GLAAD called Thomas’ opinion “a blaring red alert for the LGBTQ+ community and for all Americans.”

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What do North Dakota voters say about same-sex marriage?

According to a recent North Dakota News Cooperative poll, a total of 56% of likely voters support the Supreme Court’s 2015 decision on same-sex marriage, while 36% favor efforts by the state House to overturn the rule.