By Stuart Gaffney and John Lewis–
North Dakota? How could North Dakota, of all places, stand at the forefront of protecting marriage equality?
The state ranks as the third least-populated state in the country. With 800,000 inhabitants, its entire population roughly equals that of the city of San Francisco alone. Donald Trump trounced Kamala Harris in North Dakota by an over two-to-one margin last November, and the state has not cast its Electoral College votes for a Democratic presidential candidate since it did so six decades ago for Lyndon Johnson in 1964. The state has not elected a Democratic governor in over 30 years, and Republicans overwhelmingly dominate the North Dakota legislature, holding an 82–11 margin in the House and a 42–5 margin in the Senate.
But North Dakota took its rightful position as a defender of the freedom to marry two weeks ago, when its state senate by a two-to-one margin—31–16—voted down a proposed legislative resolution that would have urged the U.S. Supreme Court to overturn its landmark Obergefell nationwide marriage equality decision. This strong rejection of the measure was due, not only to the literal handful of Democrats in the Senate, including openly gay Senator Joshua Boschee, but also because of at least 26 of the Senate’s 42 Republicans who voted against it.
The Senate vote came on the heels of the measure’s passage in the North Dakota House by a 52–40 margin in February. But even though the house vote was very concerning, the 12-vote margin in the legislative body where Republicans hold a 71-vote edge over Democrats means that approximately 30 Republican house members voted against the bill.
It’s also noteworthy that North Dakota’s current governor, Republican Kelly Armstrong, was a member of Congress when the Respect for Marriage Act, which protects marriage equality under federal law and safeguards it in the states if the Supreme Court were to overturn Obergefell, was enacted. Armstrong stood up for marriage equality and voted in favor of the Act, even though the state’s two Republican U.S. senators did not.
The North Dakota State Senate vote, however, is not at all grounds for complacency. In fact, it represents the opposite. The victory was only possible because of the hard work, strength, dedication, and courage of North Dakota’s LGBTIQ community, its allies, and all who believe in marriage equality.
The results of recent public opinion research are further testament to the importance of this work. A North Dakota News Coop poll conducted a month ago reported that 56% of state residents supported Obergefell with only 36% supporting the anti-gay resolution. A Public Religion Research Institute (PRRI) 2024 survey released earlier this month found that 61% of North Dakotans supported marriage equality. That’s a stunning turnaround from 2004, when North Dakota passed a statewide initiative banning same-sex marriage by a 73% to 27% vote.
The dramatic reversal demonstrates the power of numerous same-sex couples living their lives openly among their friends, family, neighbors and co-workers and not being silent. Indeed, just over two weeks after the House passed the resolution, at least one of the Republicans who had voted in favor of the resolution, Representative Matt Ruby, publicly announced that he had made a serious mistake in voting for it and urged the Senate to reject it.
Ruby revealed that he learned how his vote had hurt LGBTIQ people he personally knew and cared about—members of his own family as well as soldiers he had been in the military with. People who knew Ruby had clearly spoken up in the wake of his actions, and the representative came to realize that his vote had sent same-sex couples the deeply harmful message that “you’re not welcome” here. Ruby confessed that, although he had regretted many votes during his 9-year tenure in the state legislature, “this is the first time I’ve been disappointed with myself over a vote.”
What happened in North Dakota is also a reminder that, like it or not, maintaining and increasing Republican support for marriage equality is critical to protecting the freedom to marry in today’s political climate. According to the PRRI survey, Republican support nationwide for marriage equality is at 50%, far behind 83% Democratic support and independent support at 72%, but Republican support has grown by 15 percentage points over the last decade. That support needs to increase further in coming years.
Today, a Republican supermajority controls the U.S. Supreme Court. Justices Thomas and Alito have publicly expressed interest in overturning Obergefell. But, as of today, no county clerk’s office has refused to marry a same-sex couple, a move that could set up a legal challenge to Obergefell. If a challenge were to reach the high court, we would need two Republican-nominated justices to join the three Democratic-nominated justices to uphold Obergefell. We personally believe that Roberts and Kavanaugh could do so, based on what they’ve done in some prior cases, and it is possible that Gorsuch or Barrett might support the ruling also, although we do not have any direct indication as to their inclinations.
It is also important to remember that the Obergefell decision itself was possible because one of the Supreme Court’s 5–4 Republican majority on the Court at the time—Anthony Kennedy—voted in favor and, in fact, wrote the decision. And Justice Kennedy’s sitting on the Court was not just a matter of good luck: it was the result of extraordinary organizing against President Reagan’s nomination of the ultra-conservative Robert Bork for the post. The U.S. Senate rejected Bork’s nomination, opening up the seat for Kennedy.
Despite our being encouraged by the North Dakota state senate’s vote in favor of marriage equality, we are appalled by the multiple pieces of horrific legislation that the state has passed against transgender people in recent years. We all must stand up for transgender freedom and equality as much we do for marriage equality.
We desire that the state’s dramatic turnaround on marriage equality can serve as hope that an equally strong reversal in favor of transgender people could occur there, too—and that, someday, North Dakota will stand, not only at the forefront of protecting marriage equality, but also transgender rights.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
6/26 and Beyond
Published on March 27, 2025
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