Testimony on SB 2230 -- Definition of Marriage

To: Members of the House Judiciary Committee
From: Christopher T. Dodson, Executive Director
Subject: SB 2230 (Relating to the Definition of Marriage)
Date: March 11, 1997

It almost goes without saying that this bill has generated a great deal of discussion and media attention. Unfortunately, too much of this attention has failed to focus on the issue at hand. Too often, the discussion is dominated by, on one side, extreme claims of individual autonomy and, on the other side, animosity toward homosexual persons. We believe that the real issue concerns the nature of the institution of marriage.

Marriage is a fundamental social institution. It is more than a mere contract. Through the institution of marriage, men and women unite their lives, establish families, and become a fundamental component of a community. Spouses acquire a special relationship to each other and to society. This special relationship is only possible because of the complementary natures of a woman and a man. Through marital love, man and woman, equal yet different, complement one another and, consequently, humanize and civilize each other and society. Marriage, by its nature, is based on the sexual differences of one woman and one man.

Religion, Catholic or otherwise, did not create the institution of marriage. It is a natural institution blessed and defended by religious groups. Nor is marriage a creation of the state. It precedes the state. This does not mean, however, that laws have no role to play regarding marriage. Since marriage is a fundamental institution of society and crucial to the existence of healthy communities and the common good, the state must preserve, protect, and promote marriage. Government cannot, however, "redefine" marriage to something it is not.

Thus, we oppose attempts to grant the legal status of marriage to relationships other than those consisting of one man and one woman. North Dakotans have long
recognized the true nature of marriage by permitting marriage only "between a male and a female." We urge North Dakota's public officials to defend marriage by ensuring that the same policy apply regarding what relationships from other states are given the legal status of marriage by North Dakota.

There exists some confusion concerning this bill and existing law in North Dakota. Under existing law a marriage in North Dakota can only exist between "a male and a female." (N.D.C.C. § 14-03 01.) However, under Section 14-03-08, North Dakota recognizes all "marriages" contracted in other states so long as they are valid according to the laws of that state and do not involve residents of North Dakota. If residents of North Dakota are married in another state, the laws of North Dakota apply. There does not exist any legal authority in North Dakota indicating that definition of marriage for marriages performed in North Dakota controls for purposes of determining what "marriages" contracted in other states will be recognized as marriages in North Dakota. Instead, it appears as though any "marriage" valid in another state must, pursuant to Section 14-03-08, be recognized as a marriage in North Dakota. SB 2230 clarifies that the State of North Dakota, as it does with marriages performed in North Dakota, will only recognize as marriages those unions that consist of one man and one woman. To put it another way, if you want to preserve the status quo, pass the bill. If you are willing to let another state change the status quo for us, defeat the bill.

Opponents of this bill may state that the bill is not needed and that its only purpose is to express or create hostility toward homosexuals. For reasons I just stated, this bill is needed if we desire consistency and constancy regarding the definition of marriage. Insisting that the legal status of marriage is granted only to relationships consisting of one man and one woman, as it is for North Dakota residents, is not an act of hostility toward homosexuals. Moreover, it is very important to recognize that the issue before us concerns the nature of the institution of marriage, not sexual orientation. Indeed, the decision of the trial court in Hawaii which recognized same sex "marriages" was not based on sexual orientation discrimination. Instead, it was based on gender discrimination under the state constitution. Thus, under the reasoning of the Hawaii trial court, two heterosexual males could be granted a marriage license. SB 2230 is not a response to attempts to expand the definition of marriage. It is a response to attempts to throw out the definition of marriage.

Opponents of this bill may state that it is unconstitutional discrimination. If it is unconstitutional, then so is the existing law concerning North Dakota residents. Opponents may also claim that such a change violates the Full Faith and Credit Clause. We have little history concerning interpretation of the Full Faith and Credit Clause. Congress and President Clinton, when they enacted the Defense of Marriage Act, believed that the Full Faith and Credit Clause either did not preclude such actions by states or that the Defense of Marriage Act would assist them in doing so. Moreover, the one thing about the Full Faith and Credit Clause upon which most legal scholars agree is that the best defense against having the Full Faith and Credit Clause compel recognition of another state's acts is to express a strong public policy position for not doing so in your state's laws. SB 2230 would, hopefully, accomplish this.

Finally, some opponents may argue that marriage is only a mere social construct. "Marriage," they argue, means only what people say it means at any particular time and that sexual differences do not really exist or that they are irrelevant to what is a marriage. We believe this does not withstand a reasonable analysis of the institution of marriage. Moreover, it does not reflect our society's perspective on marriage. The practical judgment of most people, and most North Dakotans, is that marriage has something to do with sex, and that sex has something to do with sexual differences.

In closing, let me state that our position is not motivated by animosity toward homosexual persons. The Catholic Church insists that society respect the dignity of all persons, including those with a homosexual orientation. Homosexual persons have a right to and deserve our respect, compassion, and understanding. We strongly condemn attacks, abuse, and unjust discrimination based on sexual orientation. Upholding the dignity of all persons is not, however, inconsistent with upholding the essential institution of marriage. We urge North Dakotans to uphold both.