UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA


Ron Ramsay and Peter Vandervort; )
Celeste and Amber Carlson Allebach; )
Brock Dahl and Austin Lang; Michelle )
Harmon and Joy Haarstick; Bernie )
Erickson and David Hamilton; Matthew )
Lee Elmore and Beau Thomas Downey; )
and Stephanie and Siana Bock, )
)
Plaintiffs, )
)
v. ) Case No. 3:14-CV-57
)
Jack Dalrymple, in his official capacity )
as Governor; Wayne Stenehjem, in his )
official capacity as Attorney General; )
Ryan Rauschenberger, in his official )
capacity as State Tax Commissioner; )
Terry Dwelle, in his official capacity as )
State Health Officer; and Charlotte )
Sandvik, in her official capacity as Cass )
County Treasurer, )
)
Defendants. )
.....................................................................................................................................................
_________________________________________________

MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS
_________________________________________________

State of North Dakota
Wayne Stenehjem
Attorney General

By: Douglas A. Bahr
Solicitor General
State Bar ID No. 04940
Office of Attorney General
500 North 9
th
Street
Bismarck, ND 58501-4509
Telephone (701) 328-3640
Facsimile (701) 328-4300

Attorneys for Defendants Jack Dalrymple, in
his official capacity as Governor, Wayne
Stenehjem, in his official capacity as Attorney
General, Ryan Rauschenberger, in his official
capacity as Tax Commissioner, and Terry
Dwelle, in his official capacity as State Health
Officer.
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 1 of 50
i
TABLE OF CONTENTS AND AUTHORITIES

Page(s)

Statement of the Case ..............................................................................................................1

N.D. Const. art. XI, § 28 ....................................................................................... 1

N.D.C.C. § 14-03-01 ............................................................................................. 1

N.D.C.C. § 14-03-08 ............................................................................................. 1

Arguments .................................................................................................................................1

I. States define marriage ......................................................................................... 1

Gregory v. Ashcroft,
501 U.S. 452 (1991)................................................................................... 2

Nat’l Fed’n Indep. Bus. v. Sebelius,
132 S. Ct. 2566 (2012)............................................................................... 2

Collector v. Day,
78 U.S. 113 (1870)..................................................................................... 2

Graves v. N.Y. ex rel O’Keefe,
306 U.S. 466 (1939)................................................................................... 2

Shelby County v. Holder,
133 S. Ct. 2612 (2013)........................................................................... 2, 5

Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952)................................................................................... 2

United States v. Windsor,
133 S. Ct. 2675 (2013)................................................................... 2, 4, 5, 6

Haddock v. Haddock,
201 U.S. 562 (1906)................................................................................... 2

Ohio ex rel. Popovici v. Agler,
280 U.S. 379 (1930)............................................................................... 2, 3

United States v. Morrison,
529 U.S. 598 (2000)................................................................................... 3

Sosna v. Iowa,
419 U.S. 393 (1975)................................................................................... 3

Ex parte Burrus,
136 U.S. 586 (1890)................................................................................... 3


Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 2 of 50
ii
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8
th
Cir. 2006) ....................................................................... 3

Pennoyer v. Neff,
95 U.S. 714 (1877)..................................................................................... 3

Williams v. North Carolina,
317 U.S. 287 (1942)............................................................................... 3, 4

Boddie v. Connecticut,
401 U.S. 371 (1971)................................................................................... 3

Nw. Austin Mun. Util. Dist. No. One v. Holder,
557 U.S. 193 (2009)................................................................................... 5

II. Binding precedent demands this Court deny Plaintiffs’ equal
protection and due process claims ....................................................................... 5

N.D. Const. art. XI, § 28 ....................................................................................... 6

N.D.C.C. § 14-03-01 ............................................................................................. 6

N.D.C.C. § 14-03-08 ............................................................................................. 6

Gallagher v. City of Clayton,
699 F.3d 1013 (8
th
Cir. 2012) ................................................................. 6, 7

Csiszer v. Wren,
614 F.3d 866 (8
th
Cir. 2010) ....................................................................... 6

Gunderson v. Hvass,
339 F.3d 639 (8
th
Cir. 2003) .................................................................... 6-7

Crowley Beverage Co. v. Miller Brewing Co.,
862 F.2d 688 (8
th
Cir. 1988) ....................................................................... 7

Clark v. Jeter,
486 U.S. 456 (1988)................................................................................... 7

City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985)................................................................................... 7

Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) .......................................................... 7

A. The Eighth Circuit has rejected Plaintiffs’ claims ....................................... 7

Hood v. United States,
342 F.3d 861 (8
th
Cir. 2003) ............................................................ 7

Okruhlik v. Univ. of Ark.,
255 F.3d 615 (8
th
Cir. 2001) ............................................................ 7


Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 3 of 50
iii
Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8
th
Cir. 2006) ............................................................ 8

Neb. Const. art. I, § 29 ............................................................................... 8

Windsor v. United States,
699 F.3d 169 (2d Cir. 2012),
aff’d, 133 S. Ct. 2675 (2013) ....................................................... 8, 9

Cook v. Gates,
528 F.3d 42 (1
st
Cir. 2008) .............................................................. 8

Price-Cornelison v. Brooks,
524 F.3d 1103 (10
th
Cir. 2008) ........................................................ 8

Lofton v. Sec’y of Dep’t of Children & Family Servs.,
358 F.3d 804 (11
th
Cir. 2004) .......................................................... 8

Andersen v. King County,
138 P.3d 963 (Wash. 2006) ............................................................ 8

Romer v. Evans,
517 U.S. 620 (1996) .................................................................... 8, 9

Lawrence v. Texas,
539 U.S. 558 (2003) ........................................................................ 9

B. The Supreme Court has rejected Plaintiffs’ claims .................................... 9

Baker v. Nelson,
409 U.S. 810 (1972) ........................................................................ 9

Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971),
appeal dismissed, 409 U.S. 810 (1972) .......................................... 9

Hicks v Miranda,
422 U.S. 332 (1975),
superseded by statute, 28 U.S.C. § 1257(2) ................................. 10

Doe v. Hodgson,
478 F.2d 537 (2d Cir. 1973) .......................................................... 10

Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477 (1989) ...................................................................... 10

Neely v. Newton,
149 F.3d 1074 (10
th
Cir. 1998) ...................................................... 10

McConnell v. Nooner,
547 F.2d 54 (8
th
Cir. 1976) ............................................................ 10


Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 4 of 50
iv

Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971),
appeal dismissed, 409 U.S. 810 (1972) ........................................ 10

Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8
th
Cir. 2006) .................................................... 10, 12

Baker v. Nelson,
409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) .............. 10, 11, 12

Windsor v. United States,
699 F.3d 169 (2d Cir. 2012),
aff’d, 133 S. Ct. 2675 (2013) ................................................... 10, 11

Lawrence v. Texas,
539 U.S. 558 (2003) ...................................................................... 11

Romer v. Evans,
517 U.S. 620 (1996) ...................................................................... 11

Massachusetts v. U.S. Dep’t of Health & Human Servs.,
682 F.3d 1 (1
st
Cir. 2012),
cert. denied, 133 S. Ct. 2884 (2013) ............................................. 11

Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ............................................. 11

Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) ........................................... 11

Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) ......................................... 11

Kitchen v. Herbert,
No. 13-4178, 2014 WL 2868044 *1 (10
th
Cir. June 25, 2014) ....... 12

C. Windsor did not alter the Bruning and Baker decisions ........................... 12

Windsor v. United States,
699 F.3d 169 (2d Cir. 2012),
aff’d, 133 S. Ct. 2675 (2013) ................................................... 12, 13

1 U.S.C. § 7 ............................................................................................. 12

Baker v. Nelson,
409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) .......................... 13

Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8
th
Cir. 2006) .......................................................... 13

D. Rational basis review requires judicial restraint and
deference to the legislature ...................................................................... 13
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 5 of 50
v

Romer v. Evans,
517 U.S. 620 (1996) .......................................................... 13, 14, 16

Nordlinger v. Hahn,
505 U.S. 1 (1992) .......................................................................... 13


F.C.C. v. Beach Commc'ns, Inc.,
508 U.S. 307 (1993) .................................................... 13, 14, 15, 16

Heller v. Doe ex rel. Doe,
509 U.S. 312 (1993) .................................................... 13, 14, 15, 16

Holt Civic Club v. Tuscaloosa,
439 U.S. 60 (1978) ........................................................................ 14

Baker v. Nelson,
409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) .......................... 14

Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8
th
Cir. 2006) .................................................... 14, 16

Lehnhausen v. Lake Shore Auto Parts Co.,
410 U.S. 356 (1973) ...................................................................... 14

City of City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ...................................................................... 14

Vance v. Bradley,
440 U.S. 93 (1979) .................................................................. 14, 16

Rast v. VanDeman & Lewis Co.,
240 U.S. 342 (1916) ...................................................................... 14

U.S. R.R. Ret. Bd. v. Fritz,
449 U.S. 166 (1980) ...................................................................... 14

City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41 (1986) ........................................................................ 15

United States v. O’Brien,
391 U.S. 367 (1968) ...................................................................... 15

Armour v. City of Indianapolis,
132 S. Ct. 2073 (2012) .................................................................. 15

Dandridge v. Williams,
397 U.S. 471 (1970) .......................................................... 15, 16, 17

Lindsley v. Natural Carbonic Gas Co.,
220 U.S. 61 (1911) ........................................................................ 15


Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 6 of 50
vi
Metropolis Theatre Co. v. City of Chicago,
228 U.S. 61 (1913) ........................................................................ 15

Heath & Milligan Mfg. Co. v. Worst,
207 U.S. 338 (1907) ...................................................................... 15


Bain Peanut Co. v. Pinson,
282 U.S. 499 (1931) ...................................................................... 15

City of New Orleans v. Duke,
427 U.S. 297 (1976) ...................................................................... 16

U.S. R.R. Ret. Bd. v. Fritz,
449 U.S. 166 (1980) ...................................................................... 16

Gregory v. Ashcroft,
501 U.S. 452 (1991) ...................................................................... 16

Sugarman v. Dougall,
413 U.S. 634 (1973) ...................................................................... 16

Sosna v. Iowa,
419 U.S. 393 (1975) ...................................................................... 16

E. The challenged constitutional provision and laws are rational ................. 17

Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8
th
Cir. 2006) .................................................... 17, 19

Baker v. Nelson,
409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) .................... 17, 19

N.D. Const. art. XI, § 28 ..................................................................... 17, 19

N.D.C.C. § 14-03-01 .......................................................................... 17, 19

N.D.C.C. § 14-03-08 .......................................................................... 17, 19

Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) ........................................... 17

In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. Ct. App. 2010) ........................................... 17

Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) .............................................................. 18

Morrison v. Sadler,
821 N.E.2d 15 (Ind. Ct. App. 2005) ............................................... 18

Andersen v. King County,
138 P.3d 963 (Wash. 2006) .......................................................... 18

Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 7 of 50
vii
Conaway v. Deane,
932 A.2d 571 (Md. 2007) .............................................................. 18

Standhardt v. Superior Court ex rel. County of Maricopa,
77 P.3d 451 (Ariz. Ct. App. 2003) ................................................. 18


Kan. City Taxi Cab Drivers Ass'n v. City of Kan. City,
742 F.3d 807 (8
th
Cir. 2013) .......................................................... 19


Executive Air Taxi Corp. v. City of Bismarck,
518 F.3d 562 (8
th
Cir. 2008) .......................................................... 19

F. Other rational reasons exist for limiting marriage to
opposite-sex couples ............................................................................... 19

1. The legislature could rationally believe it is
beneficial for children to be raised by both a
mother and a father ....................................................................... 19

Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8
th
Cir. 2006) ............................................... 19

Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ....................................... 19, 20, 21

In re Kandu,
315 B.R. 123 (Bankr. W.D. Wash. 2004) ............................ 20

In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. Ct. App. 2010) ................................ 20

Andersen v. King County,
138 P.3d 963 (Wash. 2006) .......................................... 20, 21

Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) ................................ 21

F.C.C. v. Beach Commc'ns, Inc.,
508 U.S. 307 (1993) ..................................................... 21, 22

Vance v. Bradley,
440 U.S. 93 (1979) ............................................................. 21

2. The legislature could rationally believe it is best
to proceed with caution before fundamentally
altering the nature of marriage ...................................................... 22

Loving v. Virginia,
388 U.S. 1 (1967) ............................................................... 22


Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 8 of 50
viii
Zablocki v. Redhail,
434 U.S. 374 (1978) ........................................................... 22

Maynard v. Hill,
125 U.S. 190 (1888) ........................................................... 22

United States v. Windsor,
133 S. Ct. 2675 (2013) ................................................. 22, 23

Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ................................... 23


Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) ................................ 23

Andersen v. King County,
138 P.3d 963 (Wash. 2006) ................................................ 23

New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) ........................................................... 23

F.C.C. v. Beach Commc'ns, Inc.,
508 U.S. 307 (1993) ........................................................... 24

Nordlinger v. Hahn,
505 U.S. 1 (1992) ............................................................... 24

Allied Stores of Ohio, Inc. v. Bowers,
358 U.S. 522 (1959) ........................................................... 24

Singer v. Hara,
522 P.2d 1187 (Wash. Ct. App. 1974) ................................ 24

Kitchen v. Herbert,
No. 13-4178, 2014 WL 2868044 *1
(10
th
Cir. June 25, 2014) ..................................................... 12

III. There is no constitutional right to same-sex marriage ........................................ 24

Citizens for Equal Protection v. Bruning,
455 F.3d 859 (8
th
Cir. 2006) ..................................................................... 24

Baker v. Nelson,
409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972) .................................... 24

N.D. Const. art. XI, § 28 ..................................................................................... 24

N.D.C.C. § 14-03-01 ........................................................................................... 24

N.D.C.C. § 14-03-08 ........................................................................................... 24


Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 9 of 50
ix
Washington v. Glucksberg,
521 U.S. 702 (1997)........................................................................... 24, 25

Collins v. City of Harker Heights,
503 U.S. 115 (1992)............................................................................ 24-25

Reno v. Flores,
507 U.S. 292 (1993)................................................................................. 25

Log Cabin Republicans v. United States,
658 F.3d 1162 (9
th
Cir. 2011) ................................................................... 25

A. The right to marry does not include the right to marry
a person of the same gender ................................................................... 26

Reno v. Flores,
507 U.S. 292 (1993) ...................................................................... 26

Washington v. Glucksberg,
521 U.S. 702 (1997) ...................................................................... 26

In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. Ct. App. 2010) ........................................... 26

Kitchen v. Herbert,
No. 13-4178, 2014 WL 2868044 *1 (10
th
Cir. June 25, 2014) ....... 26

Loving v. Virginia,
388 U.S. 1 (1967) .................................................................... 26, 27

Maynard v. Hill,
125 U.S. 190 (1888) ...................................................................... 27

Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942) ...................................................................... 27

Zablocki v. Redhail,
434 U.S. 374 (1978) ...................................................................... 27

Noah Webster, Etymological Dictionary 130 (1st ed. 1869) ..................... 27

Joseph E. Worcester, A Primary Dictionary of the English Language
176 (1871) ..................................................................................... 27

John Bouvier, A Law Dictionary Adapted to the Constitution
and Laws of the United States 105 (12
th
ed. 1868) .................................. 27

Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) .............................................................. 27

Standhardt v. Superior Court ex rel. County of Maricopa,
77 P.3d 451 (Ariz. Ct. App. 2003) ................................................. 27

Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 10 of 50
x
B. Same-sex marriage is not deeply rooted in this
Nation's history and tradition .................................................................... 28

Seegmiller v. LaVerkin City,
528 F.3d 762 (10
th
Cir. 2008) ........................................................ 28

Chavez v. Martinez,
538 U.S. 760 (2003) ...................................................................... 28

Palko v. Connecticut,
302 U.S. 319 (1937) ...................................................................... 28

In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. Ct. App. 2010) ..................................... 28, 29


United States v. Windsor,
133 S. Ct. 2675 (2013) ............................................................ 28, 30

Goodridge v. Dep’t of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ....................................................... 28

Moore v. City of E. Cleveland,
431 U.S. 494 (1977) ...................................................................... 28

Reno v. Flores,
507 U.S. 292 (1993) ...................................................................... 28

Washington v. Glucksberg,
521 U.S. 702 (1997) .......................................................... 28, 29, 30

Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) ......................................... 29

In re Kandu,
315 B.R. 123 (Bankr. W.D. Wash. 2004) ...................................... 29

Standhardt v. Superior Court ex rel. County of Maricopa,
77 P.3d 451 (Ariz. Ct. App. 2003) ................................................. 29

Dean v. Dist. of Columbia,
653 A.2d 307 (D.C. 1995) ............................................................. 29

Baehr v. Lewin,
852 P.2d 44 (Haw. 1993) .............................................................. 29

Jones v. Hallahan,
501 S.W.2d 588 (Ky. Ct. App. 1973) ............................................. 29

Conaway v. Deane,
932 A.2d 571 (Md. 2007) .............................................................. 29

Andersen v. King County,
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 11 of 50
xi
138 P.3d 963 (Wash. 2006) .......................................................... 29

IV. The challenged provisions do not discriminate based on gender ....................... 31

City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985)................................................................................. 31

Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ........................................................ 31

Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) ..................................................... 31

V. Plaintiffs’ right to travel claim fails to state a claim .............................................. 31

A. The right to interstate travel embraces three components ....................... 31

Minnesota Senior Federation v. United States,
273 F.3d 805 (8
th
Cir. 2001) ..................................................... 31-32

Saenz v. Roe,
526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) ................ 32

Shapiro v. Thompson,
394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) .................... 32

N.D. Const. art. IV, § 2 ............................................................................. 32

Toomer v. Witsell,
334 U.S. 385 (1948) ...................................................................... 32

Doe v. Miller,
405 F.3d 700 (8
th
Cir. 2005) .......................................................... 32

B. The challenged provisions do not violate the right to travel ..................... 33

Doe v. Miller,
405 F.3d 700 (8
th
Cir. 2005) .......................................................... 33

Califano v. Gautier Torres,
435 U.S. 1 (1978) .................................................................... 33, 34

Memorial Hosp. v. Maricopa County,
415 U.S. 250 (1974) ...................................................................... 34

Minnesota Senior Federation v. United States,
273 F.3d 805 (8
th
Cir. 2001) .......................................................... 34

VI. North Dakota may lawfully deny recognition of same-sex
marriages performed elsewhere ......................................................................... 34

A. Federal law authorizes North Dakota to deny
recognition to same-sex marriages .......................................................... 34

Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 12 of 50
xii
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................................................. 35

28 U.S.C. § 1738C ................................................................................... 35

B. The Constitution does not require North Dakota to
recognize same-sex marriages contrary to its public
policy........................................................................................................ 35

Nevada v. Hall,
440 U.S. 410 (1979) ...................................................................... 35

Pac. Employers Ins. Co. v. Indus. Accident Comm’n,
306 U.S. 493 (1939) ...................................................................... 35


Franchise Tax Bd. v. Hyatt,
538 U.S. 488 (2003) ...................................................................... 35

Sun Oil Co. v. Wortman,
486 U.S. 717 (1988) ...................................................................... 35

N.D. Const. art. XI, § 28 ........................................................................... 35

N.D.C.C. § 14-03-01 ................................................................................ 35

N.D.C.C. § 14-03-08 ................................................................................ 35

Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) ......................................... 36

In re Marriage of J.B. & H.B.,
326 S.W.3d 654 (Tex. Ct. App. 2010) ........................................... 36

Conclusion .................................................................................................................... 36



Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 13 of 50
1
STATEMENT OF THE CASE
Plaintiffs challenge the constitutionality of N.D. Const. art. XI, § 28, N.D.C.C.
§§ 14-03-01 and 14-03-08, and any other North Dakota law limiting marriage to a legal
union between a man and a woman. See Doc. 19 ¶¶ 5, 10, 122, 135, 144, 155, p. 48
(A), (B). Plaintiffs claim that North Dakota’s exercise of its constitutional authority to
define marriage violates equal protection, due process, and the right to travel. Id.
¶¶ 119-58. Defendants Jack Dalrymple, in his official capacity as Governor, Wayne
Stenehjem, in his official capacity as Attorney General, Ryan Rauschenberger, in his
official capacity as Tax Commissioner, and Terry Dwelle, in his official capacity as State
Health Officer (collectively “State Defendants”), have moved to dismiss Plaintiffs’ First
Amended Complaint for Permanent Injunction and Declaratory Relief (Complaint). They
file this memorandum in support of their motion.
ARGUMENTS
Resolution of the legal disputes Plaintiffs raise rests in part on the State’s
authority to define marriage. As is their right, the people of North Dakota, through the
deliberative political process, retain the traditional understanding of marriage as the
union between a man and a woman. Ignoring the State’s constitutional right to define
marriage, Plaintiffs seek to redefine marriage through the judicial process. But nothing
in the United States Constitution prevents the people of North Dakota from defining
marriage as the legal union between a man and a woman. In fact, controlling precedent
dictates this Court reject Plaintiffs’ claims and dismiss the Complaint.
I. States define marriage.
Plaintiffs’ claims invite this Court to disregard a central structural feature of the
United States Constitution by interjecting federal power into an area of law uniquely
within the province of States. A judicial declaration that North Dakota’s Constitution and
laws defining marriage as the legal union between a man and a woman are
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 14 of 50
2
unconstitutional would nullify the State’s exercise of powers reserved to it by the
Constitution itself.
“[O]ur Constitution establishes a system of dual sovereignty between the States
and the Federal Government.” Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). This
fundamental principle of federalism, confirmed by the Tenth Amendment,
1
dictates that
“[i]n our federal system, the National Government possesses only limited powers; the
States and the people retain the remainder.” Nat’l Fed’n Indep. Bus. v. Sebelius, 132
S. Ct. 2566, 2577 (2012). When exercising their reserved powers, States “are as
independent of the general government as that government within its sphere is
independent of the States.” Collector v. Day, 78 U.S. 113, 124 (1870), overruled in part,
Graves v. N.Y. ex rel O’Keefe, 306 U.S. 466 (1939). Federalism, thus, “‘preserves the
integrity, dignity, and residual sovereignty of the States,’” while it “‘secures to citizens
the liberties that derive from the diffusion of sovereign power.’” Shelby County v.
Holder, 133 S. Ct. 2612, 2623 (2013) (citations omitted).
Plaintiffs’ challenge to North Dakota’s laws defining marriage invokes federal
power “at its lowest ebb.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637
(1952) (Jackson, J., concurring). Just last year, the Supreme Court explained that
“‘[t]he states, at the time of the adoption of the Constitution, possessed full power over
the subject of marriage and divorce … [and] the Constitution delegated no authority to
the Government of the United States on the subject of marriage and divorce.’” United
States v. Windsor, 133 S. Ct. 2675, 2691 (2013) (quoting Haddock v. Haddock, 201
U.S. 562, 575 (1906)) (emphasis added). The High Court acknowledged that “‘when
the Constitution was adopted the common understanding was that the domestic
relations of husband and wife and parent and child were matters reserved to the
States.’” Id. at 2680-81 (quoting Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-84

1
The Tenth Amendment to the United States Constitution provides: “The powers not
delegated to the United States by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people.”
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 15 of 50
3
(1930)) (emphasis added). Marriage, almost uniquely, is an area of law where the limits
on federal power and the substance of reserved powers together confirm the primacy, if
not exclusivity, of State authority. Compare United States v. Morrison, 529 U.S. 598,
613 (2000) (an expansive reading of the Commerce Clause would wrongly authorize
Congress to regulate “‘family law (including marriage, divorce, and child custody)’”)
(citation omitted) with Sosna v. Iowa, 419 U.S. 393, 404 (1975) (stating “domestic
relations [is] an area that has long been regarded as a virtually exclusive province of the
States”) and Ex parte Burrus, 136 U.S. 586, 593-94 (1890) (“The whole subject of the
domestic relations of husband and wife, parent and child, belongs to the laws of the
states, and not to the laws of the United States.”).
In Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8
th
Cir. 2006), the
Eighth Circuit explained that “the institution of marriage has always been, in our federal
system, the predominant concern of state government.” Id. at 867. It continued: “The
Supreme Court long ago declared, and recently reaffirmed, that a State ‘has absolute
right to prescribe the conditions upon which the marriage relation between its own
citizens shall be created, and the causes for which it may be dissolved.’” Id. (quoting
Pennoyer v. Neff, 95 U.S. 714, 734–35 (1877)). Driving the point home, the Eighth
Circuit unequivocally stated: “This necessarily includes the power to classify those
persons who may validly marry.” Id.
Reserving to the States power over marriage and family relations serves
substantial purposes, beyond the general benefits of federalism. “Each state as a
sovereign has a rightful and legitimate concern in the marital status of persons
domiciled within its borders.” Williams v. North Carolina, 317 U.S. 287, 298 (1942). “It
is within the States that [the people] live and vote and rear their children under laws
passed by their elected representatives. The States provide for the stability of their
social order, for the good morals of all their citizens, and for the needs of children from
broken homes.” Boddie v. Connecticut, 401 U.S. 371, 389 (1971) (Black, J.,
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4
dissenting).
The States’ reserved power to regulate marriage, as an aspect of federalism,
played a central role in the Supreme Court’s decision declaring section 3 of the Defense
of Marriage Act (DOMA) unconstitutional. In Windsor the Court held that Congress
violated the Fifth Amendment’s Due Process Clause, see 133 S. Ct. at 2695, by
amending the Dictionary Act to provide that for the purpose of interpreting federal law
“‘the word “marriage” means only a legal union between one man and one woman as
husband and wife, and the word “spouse” refers only to a person of the opposite sex
who is a husband or a wife.’” Id. at 2683 (quoting 1 U.S.C. § 7). In reaching that
conclusion the Court emphasized the States’ “historic and essential authority to define
the marital relation,” on the understanding that “[t]he definition of marriage is the
foundation of the State’s broader authority to regulate the subject of domestic relations
with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of
marital responsibilities.’” Id. at 2692, 2691 (quoting Williams, 317 U.S. at 298). And the
Court noted that “[c]onsistent with this allocation of authority, the Federal Government,
through our history, has deferred to state-law policy decisions with respect to domestic
relations.” Id. at 2691. Specifically, the Court held that New York’s recognition of same-
sex marriage was “without doubt a proper exercise of its sovereign authority within our
federal system, all in the way that the Framers of the Constitution intended.” Id. at
2692. Congress went astray, the Court held, by “interfer[ing] with the equal dignity of
same-sex marriages, a dignity conferred by the States in the exercise of their sovereign
power . . . .” Id. at 2693. Given this reasoning, it is “undeniable” that the Court’s
judgment in Windsor “is based on federalism.” Id. at 2697 (Roberts, C.J., dissenting).
Plaintiffs’ challenge to North Dakota’s definition of marriage invites the Court to
make the same error committed by Congress in enacting section 3 of DOMA—by
creating a “federal intrusion on state power” with its resulting “disrupt[ion] [to] the federal
balance.” Id. at 2692. Windsor affirms that North Dakota’s laws defining marriage
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 17 of 50
5
deserve this Court’s respect and deference, no less than New York’s laws. That the
State of North Dakota chose to keep and preserve the traditional heterosexual definition
of marriage, while New York decided to allow marriage between persons of the same
sex, does not detract from the validity of North Dakota’s choice. Windsor reaffirms “the
long-established precept that the incidents, benefits, and obligations of marriage . . .
may vary, subject to constitutional guarantees, from one State to the next.” Id. at 2692.
Singling out North Dakota’s marriage laws for less respect or deference than the
Supreme Court gave New York’s laws would contradict the Court’s endorsement of
nationwide diversity on the States’ consideration of same-sex marriage, as well as
violating the “‘fundamental principle of equal sovereignty’ among the States.” Shelby
Co., 133 S. Ct. at 2623 (quoting Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S.
193, 203 (2009)).
Fundamental principles of federalism reserve to North Dakota the sovereign
authority to define and regulate marriage. A judicial declaration re-writing North
Dakota’s definition of marriage would disrupt the federal balance, just as section 3 of
DOMA did, by interjecting federal power into an area of law recognized as uniquely
belonging to State authority. Plaintiffs are free to advocate for their own version of
marriage through the political process. But they are not entitled to have their views
imposed by judicial fiat.
As stated by Justice Alito: “Same-sex marriage presents a highly emotional and
important question of public policy—but not a difficult question of constitutional law. The
Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no
provision of the Constitution speaks to the issue.” Windsor, 133 S. Ct. at 2714 (Alito, J.,
dissenting); see also id. at 2707 (Scalia, J., dissenting) (stating “the Constitution neither
requires nor forbids our society to approve of same-sex marriage”). Because the
Constitution does not dictate States approve same-sex marriage, “[i]t leaves the choice
to the people, acting through their elected representatives at both the federal and state
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 18 of 50
6
levels.” Id. at 2711 (Alito, J., dissenting).
Likewise, this Court need not, and should not, choose between same-sex and
traditional marriage. This case is really about who decides, not who is right in this
important policy debate. As cautioned by Justice Alito, when faced with a request like
Plaintiffs’ to recognize “a very new right, . . . judges have cause for both caution and
humility.” Id. at 2715.
Under the United States Constitution, the people of North Dakota decide the
definition of marriage for the State of North Dakota.
II. Binding precedent demands this Court deny Plaintiffs’ equal protection and
due process claims.

The Constitution grants the people of North Dakota the right to choose how to
define marriage. Nothing in the United States Constitution prevents the people of North
Dakota from defining marriage as the legal union between a man and a woman.
Binding precedent dictates that this Court hold North Dakota’s choice to define marriage
as the legal union between a man and a woman does not violate equal protection or
due process.
Plaintiffs assert N.D. Const. art. XI, § 28 and N.D.C.C. §§ 14-03-01 and 14-03-08
“violate the equal protection guarantee of the Fourteenth Amendment . . . .” Doc. 19
¶ 122. They also assert that “[t]he right to marry the unique person of one’s choice . . .
is one of the fundamental liberty interests protected for all by the Due Process Clause of
the Fourteenth Amendment.” Id. ¶ 145. But this Court need look no further than
binding Eighth Circuit and Supreme Court precedent to reject Plaintiffs’ claims.
As a general rule, statutes challenged on equal protection or substantive due
process grounds must only be rationally related to a legitimate government interest
unless the law implicates a fundamental right or involves a suspect or quasi-suspect
classification. See Gallagher v. City of Clayton, 699 F.3d 1013, 1019 (8
th
Cir. 2012);
Csiszer v. Wren, 614 F.3d 866, 872 (8
th
Cir. 2010); Gunderson v. Hvass, 339 F.3d 639,
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7
643 (8
th
Cir. 2003); Crowley Beverage Co. v. Miller Brewing Co., 862 F.2d 688, 691 (8
th

Cir. 1988). “Such a law is ‘accorded a strong presumption of validity,’ and is upheld ‘if
there is any reasonably conceivable state of facts that could provide a rational basis for
the classification.’” Gallagher, 699 F.3d at 1019 (citations omitted).
2

Plaintiffs attempt to avoid rational-basis review by arguing that sexual orientation
is a type of class meriting strict or heightened scrutiny. Doc. 19 ¶ 128. They also argue
there is a fundamental right to marry someone of the same gender. Id. ¶ 145. But
binding precedent holds sexual orientation
3
does not implicate a suspect, or otherwise
protected, class and that there is no fundamental right to same-sex marriage.
A. The Eighth Circuit has rejected Plaintiffs’ claims.
District courts within the Eighth Circuit are bound to apply the precedent of the
Eighth Circuit Court of Appeals. In Hood v. United States, 342 F.3d 861 (8
th
Cir. 2003),
the Eighth Circuit reversed a district court that embraced the reasoning of other circuits
instead of apply the binding precedent of the Eighth Circuit. The Eighth Circuit
unequivocally stated the district court “is bound, as are we, to apply the precedent of
this Circuit.” Id. at 864. “As for existing circuit precedent, only the court en banc can
overrule it.” Okruhlik v. Univ. of Ark., 255 F.3d 615, 622 (8
th
Cir. 2001). The Eighth
Circuit has held sexual orientation does not merit strict or heightened scrutiny, and this
Court is bound by that holding.

2
There are other levels of scrutiny that apply to laws that classify according to certain
characteristics. See Clark v. Jeter, 486 U.S. 456, 461 (1988). Strict scrutiny is reserved
for laws that classify based on so-called suspect classes such as “race, alienage, or
national origin.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). And
classifications based on “sex or illegitimacy” receive an “intermediate scrutiny.” Clark, 486
U.S. at 461. Neither level of scrutiny applies in this case as explained infra.
3
By addressing this issue, State Defendants do not agree that the challenged laws
draw distinction based on sexual orientation. Like the constitutional provision challenged
in Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1004 (D. Nev. 2012), no distinction is
drawn according to sexual orientation.

Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 20 of 50
8
In Bruning, public interest groups whose members included gay and lesbian
citizens of Nebraska challenged a Nebraska constitutional amendment, codified as
Article I, § 29 of the Nebraska Constitution, which provides:
Only marriage between a man and a woman shall be valid or recognized
in Nebraska. The uniting of two persons of the same sex in a civil union,
domestic partnership, or other similar same-sex relationship shall not be
valid or recognized in Nebraska.

455 F.3d at 863 (quoting Neb. Const. art. I, § 29). The Eighth Circuit held the
constitutional amendment “should receive rational-basis review under the Equal
Protection Clause, rather than a heightened level of judicial scrutiny.” Id. at 866; see
also id. at 867 (stating appellees “are not entitled to strict scrutiny review”). Almost
every other circuit court has reached the same conclusion.
4
See Cook v. Gates, 528
F.3d 42, 61 (1
st
Cir. 2008) (joining sister circuits in declining recognize homosexuals as
a suspect class for equal protection purposes and citing cases); Price-Cornelison v.
Brooks, 524 F.3d 1103, 1113 n.9 (10
th
Cir. 2008) (rejecting, “like many others, . . . the
notion that homosexuality is a suspect classification” and citing cases); see also Lofton
v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11
th
Cir. 2004)
(holding that homosexuality is not a suspect class and noting that “all of our sister
circuits that have considered the question have declined to treat homosexuals as a
suspect class.”); see also Andersen v. King County, 138 P.3d 963, 975 (Wash. 2006)
(holding, and citing numerous cases holding, “that gay and lesbian persons do not
constitute a suspect class”). More importantly, irrespective of the holdings of other
courts, Bruning is binding precedent on this Court.
No intervening Supreme Court precedent supersedes the Eighth Circuit’s holding
in Bruning. Romer v. Evans, 517 U.S. 620 (1996) applied “conventional” rational basis

4
In its decision striking down part of DOMA, the Second Circuit held that homosexuals are
a quasi-suspect class subject to heightened scrutiny. Windsor v. United States, 699 F.3d
169, 185 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013). But in reviewing the Second
Circuit’s decision, the Supreme Court’s majority opinion did not address the status of a
sexual orientation class. Windsor, 133 S. Ct. at 2689-96.

Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 21 of 50
9
review in holding that a Colorado constitutional amendment violated equal protection by
placing a “[s]weeping” and “unprecedented” ban on state and local laws offering gays
and lesbians common protections from discrimination. Id. at 627, 631-32, 633, 635.
And the Court’s other decisions addressing rights relevant to gays and lesbians did not
address which level of review was appropriate for laws discriminating on the basis of
sexual orientation because their holdings rested on due process rights available to all.
See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“Their right to liberty under the Due
Process Clause gives them the full right to engage in their [intimate sexual] conduct
without intervention of the government” and “[t]he Texas statute furthers no legitimate
state interest which can justify its intrusion into the personal and private life of the
individual.”); Windsor, 133 S. Ct. at 2695 (“DOMA is unconstitutional as a deprivation of
the liberty of the person protected by the Fifth Amendment of the Constitution.”).
B. The Supreme Court has rejected Plaintiffs’ claims.
Baker v. Nelson, 409 U.S. 810 (1972) is also binding precedent on this Court. In
Baker, the United States Supreme Court summarily rejected the equal protection and
due process claims made by Plaintiffs in this case.
In Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S.
810 (1972), the Minnesota Supreme Court rejected plaintiffs’ claims that same-sex
marriage was a fundamental right. The court also ruled that “[t]he equal protection
clause of the Fourteenth Amendment, like the due process clause, is not offended by
the state’s classification of persons authorized to marry” and that there was “no
irrational or invidious discrimination.” Id. at 187 (holding the challenged statute “does
not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States
Constitution.”).
On appeal the United States Supreme Court summarily dismissed the case “for
want of a substantial federal question.” See Baker, 409 U.S. at 810. Under 28 U.S.C.
1257(2), the federal statute in effect at the time, the Supreme Court had no discretion to
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 22 of 50
10
refuse adjudication of the case on the merits. As a result, the dismissal constitutes a
ruling on the merits and is binding on the issues addressed. See Hicks v Miranda, 422
U.S. 332, 344-45 (1975), superseded by statute, 28 U.S.C. § 1257(2). In Hicks, the
Supreme Court stated “lower courts are bound by summary decisions by this Court ‘until
such time as the Court informs (them) that (they) are not.’” Id. (quoting Doe v.
Hodgson, 478 F.2d 537, 539 (2d Cir. 1973)). The Supreme Court has also stated: “If a
precedent of this Court has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions, [lower courts] should follow the case which
directly controls, leaving to this Court the prerogative of overruling its own decisions.”
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also
Neely v. Newton, 149 F.3d 1074, 1078 (10
th
Cir. 1998) (“summary affirmances and
summary dismissals for want of a substantial federal question are considered decisions
on the merits, and lower courts are thereby bound by the summary actions”).
In McConnell v. Nooner, 547 F.2d 54, 56 (8
th
Cir. 1976), the Eighth Circuit
followed Baker, stating “the Supreme Court’s dismissal of the appeal for want of a
substantial federal question constitutes an adjudication on the merits which is binding
on the lower federal courts.” More recently, in Bruning the Eighth Circuit expressly
relied on Baker’s holding same-sex marriage is not a fundamental right. It wrote:
In the nearly one hundred and fifty years since the Fourteenth
Amendment was adopted, to our knowledge no Justice of the Supreme
Court has suggested that a state statute or constitutional provision
codifying the traditional definition of marriage violates the Equal Protection
Clause or any other provision of the United States Constitution. Indeed, in
Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), when
faced with a Fourteenth Amendment challenge to a decision by the
Supreme Court of Minnesota denying a marriage license to a same-sex
couple, the United States Supreme Court dismissed “for want of a
substantial federal question.”

455 F.3d at 870.
Though it has had many opportunities to do so, including last year in Windsor,
the Supreme Court has never informed lower courts that they are no longer bound by
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 23 of 50
11
Baker.
5
The First Circuit recently recognized that subsequent Supreme Court opinions
may open the door to some “gay rights” claims, but Baker “limit[s] the arguments to
ones that do not presume or rest on a constitutional right to same-sex marriage.”
Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 8 (1
st
Cir. 2012),
cert. denied, 133 S. Ct. 2884, 2887 (2013). The First Circuit wrote:
Baker is precedent binding on us unless repudiated by subsequent
Supreme Court precedent. Following Baker, “gay rights” claims prevailed
in several well known decisions, but neither mandates that the
Constitution requires states to permit same sex marriages. A Supreme
Court summary dismissal “prevent[s] lower courts from coming to
opposite conclusions on the precise issues presented and necessarily
decided by those actions.”

Id. (citations omitted). Other federal district court decisions addressing constitutional
challenges to state marriage laws have concluded that Baker remains binding. See
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012) (equal protection claim barred
by Supreme Court’s dismissal of Baker); Jackson v. Abercrombie, 884 F. Supp. 2d 1065
(D. Haw. 2012) (due process and equal protection claims barred by Supreme Court’s
dismissal of Baker); see also Wilson v. Ake, 354 F. Supp. 2d 1298, 1304-05 (M.D. Fla.
2005) (“Although Baker v. Nelson is over thirty (30) years old, the decision addressed
the same issues presented in this action and this Court is bound to follow the Supreme

5
Neither Romer, 517 U.S. 620, nor Lawrence, 539 U.S. 558, addressed the
constitutionality of state marriage laws, and neither mentions Baker. Romer had
nothing to do with marriage laws; rather, it involved the elimination of all basic legal
protections and rights of access to the ordinary political process normally available to all
people within Colorado. And Lawrence, which was decided after Romer, expressly
informed lower courts that the case did “not involve whether the government must give
formal recognition to any relationship that homosexual persons may seek to enter.” 539
U.S. at 578; see also id. at 585 (O’Connor, J., concurring) (noting that “preserving the
traditional institution of marriage” would be a legitimate state interest beyond moral
disapproval). The Supreme Court’s decision in Windsor, 133 S. Ct. 2675, also makes
no mention of Baker and certainly does not inform lower courts that they are no longer
bound by Baker. Windsor is distinguishable in that it dealt with the constitutionality of a
federal law defining marriage, not a state law. See Windsor, 699 F.3d at 178 (“The
question whether the federal government may constitutionally define marriage . . . is
sufficiently distinct from the question in Baker: whether same-sex marriage may be
constitutionally restricted by the states.”).
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 24 of 50
12
Court’s decision.”).
6

Bruning and Baker are binding precedent establishing there is no fundamental
right to same-sex marriage, sexual orientation is not a suspect class, and state laws
limiting marriage to persons of the opposite sex do not violate equal protection or due
process. Those holdings are binding on this Court until the en banc Eighth Circuit or the
United States Supreme Court reverses course and holds otherwise.
C. Windsor did not alter the Bruning and Baker decisions.
Windsor did not involve a state law prohibiting same-sex marriage; it involved
DOMA. The challenge before the Supreme Court in Windsor did not involve Section 2
of DOMA, which allows States to refuse to recognize same-sex marriages performed
under the laws of other States. See 133 S. Ct. at 2682-83. Instead, Windsor involved
only Section 3, which for purposes of federal law defined the word “marriage” to mean
“‘only a legal union between one man and one woman as husband and wife’”, and the
word “spouse” to mean “‘only a person of the opposite sex who is a husband or a wife.’”
Id. at 2682-83 (quoting 1 U.S.C. § 7).
As discussed earlier, the Windsor Court found Section 3 of DOMA
unconstitutional. Importantly, the Court reached this decision based upon the fact that it
is the States, not the federal government, that have the power to regulate marriage and
domestic relations. Thus, Windsor does not hold that a fundamental right to marry a
person of the same sex exists, or that States have to allow and recognize same-sex
marriages; rather, it holds that, if a State allows same-sex marriage, federal agencies
are required to honor that State’s decision. The Windsor majority made it clear that its
decision cannot be read to establish a fundamental right to marry a person of the same

6
A divided panel (2-1) of the Tenth Circuit recently held that a “state may not deny the
issuance of a marriage license to two persons, or refuse to recognize their marriage,
based solely upon the sex of the persons in the marriage union.” Kitchen v. Herbert,
No. 13-4178, 2014 WL 2868044 *1 (10
th
Cir. June 25, 2014). The majority concluded
“‘doctrinal developments’ had superseded Baker.” Id. at *8. Judge Kelly, in his dissent,
properly acknowledged that Baker “should foreclose the Plaintiffs’ claims, at least in this
court.” Id. at 33 (Kelly, C.J., dissenting).
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 25 of 50
13
sex. It wrote: “By seeking to displace this protection [provided by state marriage laws]
and treating those persons as living in marriages less respected than others, the federal
statute is in violation of the Fifth Amendment. This opinion and its holding are confined
to those lawful marriages.” Id. at 2696; see also id. at 2697 (Roberts C.J., dissenting)
(“I write only to highlight the limits of the majority's holding and reasoning today, lest its
opinion be taken to resolve not only a question that I believe is not properly before us—
DOMA's constitutionality—but also a question that all agree, and the Court explicitly
acknowledges, is not at issue.”).
The Windsor Court did not explicitly or implicitly over-rule Baker, meaning Baker
continues to be good law and binding on this Court. Moreover, Windsor did not address
the issues directly addressed by the Eighth Circuit in Bruning, meaning Bruning
continues to be binding on this Court.
D. Rational basis review requires judicial restraint and deference to the
legislature.

The Fourteenth Amendment’s promise of equal protection has always been
grounded in the practical reality that “most legislation classifies for one purpose or
another, with resulting disadvantage to various groups or persons.” Romer, 517 U.S. at
631. “The Equal Protection Clause does not forbid classifications. It simply keeps
governmental decisionmakers from treating differently persons who are in all relevant
respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
The Equal Protection Clause has never provided “a license for courts to judge
the wisdom, fairness, or logic of legislative choices.” F.C.C. v. Beach Commc'ns, Inc.,
508 U.S. 307, 313 (1993). Rather, equal protection normally affords legislative
decisions considerable deference. Thus, a legislative classification that neither affects a
fundamental right nor targets a suspect class “is accorded a strong presumption of
validity.” Heller v. Doe ex rel. Doe, 509 U.S. 312, 319 (1993). Such a classification will
not violate the Equal Protection Clause so long as it rationally relates to some legitimate
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 26 of 50
14
governmental purpose. Id. at 320; Romer, 517 U.S. at 631. In other words, “[a]
statutory classification fails rational-basis review only when it ‘“rests on grounds wholly
irrelevant to the achievement of the State's objective.”’” Heller, 509 U.S. at 324 (quoting
Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71 (1978)).
Baker and Bruning dictate that this Court review Plaintiffs’ equal protection and
due process claims under the rational basis standard. Under rational basis review, the
burden rests on Plaintiffs to “‘negative every conceivable basis which might support’”
the legislative classification. Beach Commc’ns, 508 U.S. at 315 (quoting Lehnhausen
v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). In contrast, the State
Defendants need not produce any evidence to show the rationality of the challenged
classification. Heller, 509 U.S. at 320. Statutes concerning social policy “must be
upheld . . . if there is any reasonably conceivable state of facts that could provide a
rational basis for the classification.” Beach Commc’ns, 508 U.S. at 313; see also City of
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (“When social or
economic legislation is at issue, the Equal Protection Clause allows the States wide
latitude.”). This remains true even if the conceivable legislative facts are legitimately
contested. Vance v. Bradley, 440 U.S. 93, 112 (1979) (“‘It makes no difference that the
[legislative] facts may be disputed or their effect opposed by argument and opinion of
serious strength. It is not within the competency of the courts to arbitrate in such
contrariety.’” (quoting Rast v. VanDeman & Lewis Co., 240 U.S. 342, 357 (1916))).
Moreover, the legislature need not have ever articulated any rational basis for its
decision, nor does it matter whether the “conceived reason” for the classification
“actually motivated the legislature.” Beach Commc’ns, 508 U.S. at 315; see also id. at
318 (“Whether the posited reason for the challenged distinction actually motivated
Congress is ‘constitutionally irrelevant.’” (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S.
166, 179 (1980))). A lack of legislative facts on the record explaining the legislature’s
reasoning has no significance under rational basis review. Id. at 315. In short, the
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 27 of 50
15
legislature’s choice “is not subject to courtroom fact-finding and may be based on
rational speculation unsupported by evidence or empirical data.” Id. Even if the law
was allegedly based on an improper motive, it cannot be struck down so long as any
conceivable rational basis exists to support the statute. See, e.g., City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (“‘It is a familiar principle of
constitutional law that this Court will not strike down an otherwise constitutional statute
on the basis of an alleged illicit legislative motive . . . .’” (quoting United States v.
O’Brien, 391 U.S. 367, 383 (1968))).
Finally, rational basis review compels the Court to accept any legislative
“generalizations even when there is an imperfect fit between means and ends.” Heller,
509 U.S. at 321. As the Supreme Court recently reiterated: “the Constitution does not
require the [State] to draw the perfect line nor even to draw a line superior to some
other line it might have drawn. It requires only that the line actually drawn be a rational
line.” Armour v. City of Indianapolis, 132 S. Ct. 2073, 2083 (2012); see also Dandridge
v. Williams, 397 U.S. 471, 485 (1970) (classification does not violate equal protection
simply because it “‘is not made with mathematical nicety or because in practice it results
in some inequality’” (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78
(1911))); Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69–70 (1913) (“The
problems of government are practical ones and may justify, if they do not require, rough
accommodations,—illogical, it may be, and unscientific”); Heath & Milligan Mfg. Co. v.
Worst, 207 U.S. 338, 354 (1907) (the “logical appropriateness of the inclusion or
exclusion of objects or persons” and “exact wisdom and nice adaptation of remedies are
not required”). Courts “must remember that the machinery of government would not
work if it were not allowed a little play in its joints.” Bain Peanut Co. v. Pinson, 282 U.S.
499, 501 (1931).
Rational-basis review “is a paradigm of judicial restraint.” Beach Commc’ns, 508
U.S. at 314. It forbids the judiciary from sitting “‘as a superlegislature to judge the
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16
wisdom or desirability of legislative policy determinations . . . .’” Heller, 509 U.S. at 319
(quoting City of New Orleans v. Duke, 427 U.S. 297, 303 (1976)). “‘The Constitution
presumes that, absent some reason to infer antipathy, even improvident decisions will
eventually be rectified by the democratic process and that judicial intervention is
generally unwarranted no matter how unwisely we may think a political branch has
acted.’” Beach Commc’ns, 508 U.S. at 314 (quoting Vance, 440 U.S. at 97 (footnote
omitted)); see also Romer, 517 U.S. at 632 (“In the ordinary case, a law will be
sustained if it can be said to advance a legitimate government interest, even if the law
seems unwise or works to the disadvantage of a particular group, or if the rationale for it
seems tenuous.”); U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175-76 (1980) (as long as
“‘the classification has some “reasonable basis,” it does not offend the Constitution
simply because . . . in practice it results in some inequality’” and the rational-basis test
does not change – in theory or application – just because the classification “would
undoubtedly seem inequitable to some members of a class” (quoting Dandridge, 397
U.S. at 485)).
Rational basis review must be applied with an unusually delicate touch here.
Equal protection “‘scrutiny will not be so demanding where [it] deal[s] with matters
resting firmly within a State’s constitutional prerogatives.’” Gregory, 501 U.S. at 462
(quoting Sugarman v. Dougall, 413 U.S. 634, 648 (1973)). Because the Plaintiffs’
constitutional attack on North Dakota’s definition of marriage targets “an area that has
long been regarded as a virtually exclusive province of the States,” Sosna, 419 U.S. at
404, that definition is entitled to unusual deference. Bruning, 455 F.3d at 867 (stating
rational basis review must be particularly deferential to state marriage laws which are
“the predominant concern of state government.”). Deferring to North Dakota’s
“‘constitutional prerogatives,’” Gregory, 501 U.S. at 462 (citation omitted), follows from
the limits on judicial power—that “the Fourteenth Amendment gives the federal courts
no power to impose upon the States their views of what constitutes wise economic or
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17
social policy,” Dandridge, 397 U.S. at 486.
E. The challenged constitutional provision and laws are rational.
Bruning and Baker dictate that this Court find that the challenged laws are
rational.
In Bruning, the Eighth Circuit held Nebraska’s constitutional amendment limiting
marriage to opposite-sex couples was rational. It wrote:
[The State’s argument concerning the rational basis for its limitation on
marriage to opposite-sex couples] is also based on a “responsible
procreation” theory that justifies conferring the inducements of marital
recognition and benefits on opposite-sex couples, who can otherwise
produce children by accident, but not on same-sex couples, who cannot.
Whatever our personal views regarding this political and sociological
debate, we cannot conclude that the State’s justification “lacks a rational
relationship to legitimate state interests.”

. . .

The package of government benefits and restrictions that accompany the
institution of formal marriage serve a variety of other purposes. The
legislature–-or the people through the initiative process-–may rationally
choose not to expand in wholesale fashion the groups entitled to those
benefits.

455 F.3d at 867-68 (citations omitted).
The Eighth Circuit then held the challenged Nebraska constitutional amendment
“and other laws limiting the state-recognized institution of marriage to heterosexual
couples are rationally related to legitimate state interests and therefore do not violate
the Constitution of the United States.” Id. at 871. The “responsible procreation”
rationale for the Nebraska constitutional provision equally applies to N.D. Const. art. XI,
§ 28 and N.D.C.C. §§ 14-03-01 and 14-03-08. To borrow language from a Hawaii case:
“Here, opposite-sex couples, who can naturally procreate, advance the interest in
encouraging natural procreation to take place in stable relationships and same-sex
couples do not to the same extent. Thus, [North Dakota’s] marriage laws are reasonably
related to this legitimate state interest.” Jackson, 884 F. Supp. 2d at 1114; see also In
re Marriage of J.B. & H.B., 326 S.W.3d 654, 674, 677 (Tex. Ct. App. 2010) (“Because
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18
only relationships between opposite-sex couples can naturally produce children, it is
reasonable for the state to afford unique legal recognition to that particular social unit in
the form of opposite-sex marriage;” “The persons singled out and favored by Texas's
marriage laws, namely opposite-sex couples, have such a distinguishing and relevant
characteristic: the natural ability to procreate. The state's interest in ‘fostering
relationships that will serve children best’ is a legitimate interest within the state's
authority to regulate.” (quoting Hernandez v. Robles, 855 N.E.2d 1, 11 (N.Y. 2006));
Morrison v. Sadler, 821 N.E.2d 15, 35 (Ind. Ct. App. 2005) (stating “at least one
legitimate legislative goal at issue here is to encourage heterosexual, opposite-sex
couples to procreate responsibly and to have and raise children within a relatively
stable, committed relationship, because of the innate fact that opposite-sex intercourse
frequently results in unintended children while same-sex intercourse never will”);
Andersen, 138 P.3d at 982 (“[N]o other relationship has the potential to create, without
third party involvement, a child biologically related to both parents, and the legislature
rationally could decide to limit legal rights and obligations of marriage to opposite-sex
couples.”); Conaway v. Deane, 932 A.2d 571, 630-31 (Md. 2007) (applying rational
basis and finding the “‘inextricable link’ between marriage and procreation reasonably
could support the definition of marriage as between a man and a woman only, because
it is that relationship that is capable of producing biological offspring of both members
(advances in reproductive technologies notwithstanding)”); Standhardt v. Superior Court
ex rel. County of Maricopa, 77 P.3d 451, 462-63 (Ariz. Ct. App. 2003) (“[T]he only
sexual relationship capable of producing children is one between a man and a woman.
The State could reasonably decide that by encouraging opposite-sex couples to marry,
thereby assuming legal and financial obligations, the children born from such
relationships will have better opportunities to be nurtured and raised by two parents
within long-term, committed relationships, which society has traditionally viewed as
advantageous for children. Because same-sex couples cannot by themselves
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19
procreate, the State could also reasonably decide that sanctioning same-sex marriages
would do little to advance the State's interest in ensuring responsible procreation within
committed, long-term relationships.”).
Importantly a “‘rational basis that survives equal protection scrutiny also satisfies
substantive due process analysis.’” Kan. City Taxi Cab Drivers Ass'n v. City of Kan.
City, 742 F.3d 807, 809 (8
th
Cir. 2013) (quoting Executive Air Taxi Corp. v. City of
Bismarck, 518 F.3d 562, 569 (8
th
Cir. 2008)). Thus, Bruning is binding precedent that
N.D. Const. art. XI, § 28 and N.D.C.C. §§ 14-03-01 and 14-03-08 do not violate
Plaintiffs’ equal protection and due process rights. As previously discussed, Baker is
also binding.
F. Other rational reasons exist for limiting marriage to opposite-sex couples.

1. The legislature could rationally believe it is beneficial for children to
be raised by both a mother and a father.

Although Bruning’s holding that “responsible procreation” is a rational basis for
limiting marriage to opposite-sex couples is binding on this Court, other rational reasons
exist for North Dakota’s challenged laws. For example, courts have upheld laws
defining marriage as only the union of a man and a woman on the ground the legislature
could believe traditional marriage promotes optimal child rearing.
In Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006), the court held “there are
rational grounds on which the Legislature could choose to restrict marriage to couples of
opposite sex.” In its carefully considered decision, the court addressed both the
“responsible procreation” rationale and the “optimal child rearing” rationale. It wrote:
First, the Legislature could rationally decide that, for the welfare of
children, it is more important to promote stability, and to avoid instability, in
opposite-sex than in same-sex relationships. Heterosexual intercourse
has a natural tendency to lead to the birth of children; homosexual
intercourse does not. Despite the advances of science, it remains true
that the vast majority of children are born as a result of a sexual
relationship between a man and a woman, and the Legislature could find
that this will continue to be true. The Legislature could also find that such
relationships are all too often casual or temporary. It could find that an
important function of marriage is to create more stability and permanence
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20
in the relationships that cause children to be born. It thus could choose to
offer an inducement—in the form of marriage and its attendant benefits—
to opposite-sex couples who make a solemn, long-term commitment to
each other.

The Legislature could find that this rationale for marriage does not
apply with comparable force to same-sex couples. These couples can
become parents by adoption, or by artificial insemination or other
technological marvels, but they do not become parents as a result of
accident or impulse. The Legislature could find that unstable relationships
between people of the opposite sex present a greater danger that children
will be born into or grow up in unstable homes than is the case with same-
sex couples, and thus that promoting stability in opposite-sex relationships
will help children more. This is one reason why the Legislature could
rationally offer the benefits of marriage to opposite-sex couples only.

There is a second reason: The Legislature could rationally believe
that it is better, other things being equal, for children to grow up with both
a mother and a father. Intuition and experience suggest that a child
benefits from having before his or her eyes, every day, living models of
what both a man and a woman are like.

Id. at 7. See also In re Kandu, 315 B.R. 123, 146 (Bankr. W.D. Wash. 2004) (“Authority
exists that the promotion of marriage to encourage the maintenance of stable
relationships that facilitate to the maximum extent possible the rearing of children by
both of their biological parents is a legitimate congressional concern.”); In re Marriage of
J.B. & H.B., 326 S.W.3d at 677 (“The state has a legitimate interest in promoting the
raising of children in the optimal familial setting. It is reasonable for the state to
conclude that the optimal familial setting for the raising of children is the household
headed by an opposite-sex couple.”); id. at 678 (“The state also could have rationally
concluded that children are benefited by being exposed to and influenced by the
beneficial and distinguishing attributes a man and a woman individually and collectively
contribute to the relationship.”); Andersen, 138 P.3d at 983 (“[T]he legislature was
entitled to believe that providing that only opposite-sex couples may marry will
encourage procreation and child-rearing in a ‘traditional’ nuclear family where children
tend to thrive.”).
Plaintiffs, of course, may dispute that it is better for children to grow up with both
a mother and a father. In fact, there is no doubt they could even cite studies in support
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21
of their position, while the State could cite studies that support the rationale that children
benefit from being raised by both a mother and a father. And both sides of the debate
could then criticize the others’ studies, methods, and conclusions. See, e.g., Jackson,
884 F. Supp. 2d at 1114-16 (noting conflicting “evidence” and both sides pointing out
flaws in the other side’s evidence). But that is not the test. At most, conflicting studies
show the issue is debatable and that the legislature could rationally think one way or the
other. See id. at 1111-14 (upholding traditional definition of marriage because parties’
conflicting evidence showed that the optimal parenting rationale was at least debatable);
Hernandez, 855 N.E.2d at 8 (“In the absence of conclusive scientific evidence, the
Legislature could rationally proceed on the commonsense premise that children will do
best with a mother and father in the home.”); Andersen, 138 P.3d at 983 (stating “the
legislature was entitled to believe that providing that only opposite-sex couples may
marry will encourage procreation and child-rearing in a ‘traditional’ nuclear family where
children tend to thrive”); id. (stating “it is not the province of this court to pass on the
merits of the arguments and studies”); Hernandez, 855 N.E.2d at 7 (“Plaintiffs, and
amici supporting them, argue that the proposition asserted is simply untrue: that a home
with two parents of different sexes has no advantage, from the point of view of raising
children, over a home with two parents of the same sex. Perhaps they are right, but the
Legislature could rationally think otherwise.”).
Admittedly, a factual dispute exists regarding whether children benefit from being
raised by both a mother and a father. That dispute, however, does not preclude
judgment in State Defendants’ favor because, under rational basis scrutiny, empirical
support is not necessary to sustain a classification. Beach Commc’ns, 508 U.S. at 315.
Factual disputes that may be material in other civil cases generally have no relevance in
a rational basis review. Vance, 440 U.S. at 110-11. Simply put, North Dakota’s
“legislative choice is not subject to courtroom fact-finding and may be based on rational
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22
speculation unsupported by evidence or empirical data.” Beach Commc’ns, 508 U.S. at
315.
2. The legislature could rationally believe it is best to proceed with
caution before fundamentally altering the nature of marriage.

It is well-settled that the ancient and ongoing tradition of marriage between a
man and a woman resulting in the procreation and care of children inside that family unit
has been both “fundamental to our very existence and survival,” Loving v. Virginia, 388
U.S. 1, 12 (1967), and “‘the foundation of the family and of society, without which there
would be neither civilization nor progress,’” Zablocki v. Redhail, 434 U.S. 374, 384
(1978) (quoting Maynard v. Hill, 125 U.S. 190, 211 (1888)). That explains, at least in
part, why the man-woman definition of marriage has endured for so long, virtually
unquestioned until very recent times. It also helps explain North Dakota’s and the
majority of other States’ attempt to protect the traditional definition of marriage by
codification and constitutional amendment. North Dakota could have rationally
concluded that changing the foundations of society by redefining marriage will likely
cause changes in society itself. And it could also have rationally decided that
approaching this issue cautiously—taking a wait-and-see-approach—makes the most
sense for North Dakota.
No one can seriously question the fact that “[p]ast changes in the understanding
of marriage . . . have had far-reaching consequences.” Windsor, 133 S. Ct. at 2715
(Alito, J., dissenting). For almost any such change, the resulting consequences and
whether they are good or bad are not immediately clear and often depend on numerous
variables. As Justice Alito pointed out, it sometimes takes years to understand the
impact social changes have on children and society. Id. at 2715 & n.5. Specifically as
to same-sex marriage, some respectable voices warn that it will seriously harm the
institution of marriage and society, while others appear to hope that it does. Id. at 2715-
16 & n.6. Still others opine that same-sex marriage can strengthen a weakening
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23
institution. Id. at 2715-16. But no one knows right now the precise impact same-sex
marriage will have on traditional marriage, children, and society at large. Given the
crucial role man-woman marriage has played in building society and the uncertainty
surrounding the impact of same-sex marriage, North Dakota could rationally choose to
proceed with caution. See, e.g., Sevcik, 911 F. Supp. 2d at 1016 (“Because the family
is the basic societal unit, the State could have validly reasoned that the consequences
of altering the traditional definition of marriage could be severe.”); Jackson, 884 F.
Supp. 2d at 1117 (“[I]t is not beyond rational speculation to conclude that fundamentally
altering the definition of civil marriage to include same-sex unions might result in
undermining the societal understanding of the link between marriage, procreation, and
family structure.”); Andersen, 138 P.3d at 1005 (J.M. Johnson, J., concurring in
judgment) (“Before redefining a social institution [like man-woman marriage], the
legislature should consider ramifications flowing from all three . . . couple communities [,
i.e., male couples, female couples, and male-female couples,] and the resulting impact
on the social fabric and on children.”); id. at 1006 (“it is rational that [the] legislature
insists upon compelling evidence before making a sweeping alteration in marriage.”).
One of the advantages of federalism is that it allows States, “if its citizens
choose,” to adopt “novel social and economic experiments without risk to the rest of the
country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting). No society has yet had a generation’s worth of experience permitting
same-sex marriage. Other States’ experience with same-sex marriage could provide
valuable practical data about the effects of same-sex marriage. North Dakota could
rationally decide to wait until it obtains more information about the effects of same-sex
marriage before deciding to permit it in North Dakota.
By making clear that same-sex marriage is not permitted in North Dakota, and
by declining to recognize out-of-state same-sex marriages in North Dakota, the
challenged laws avoid the unforeseen consequences of a sudden and dramatic change
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24
to the definition of marriage. They preserve for the people of North Dakota the ability to
critically evaluate the State’s marriage laws and to learn over time from the experiences
of other States. It would be rational for North Dakota to take such an approach
regarding redefining the fundamental institution of marriage.
As noted above, under rational basis review, it is constitutionally irrelevant what
“actually motivated the legislature” to pass the challenged laws. Beach Commc’ns, 508
U.S. at 315. The Constitution “does not demand for purposes of rational-basis review
that a legislature or governing decisionmaker actually articulate at any time the purpose
or rationale supporting its classification.” Nordlinger, 505 U.S. at 15. The only question
is whether “a purpose may conceivably or ‘may reasonably have been the purpose and
policy’ of the relevant governmental decisionmaker.” Id. (quoting Allied Stores of Ohio,
Inc. v. Bowers, 358 U.S. 522, 528–29 (1959)). As demonstrated, “[t]here can be no
doubt that there exists a rational basis for the state to limit the definition of marriage to
exclude same-sex relationships.” Singer v. Hara, 522 P.2d 1187, 1197 (Wash. Ct. App.
1974). For this reason, Plaintiffs’ equal protection and due process claims must be
dismissed.
7

III. There is no constitutional right to same-sex marriage.
Even if Bruning and Baker were not binding, which they are, their rejection of a
claimed constitutional right to same-sex marriage is still constitutionally correct. The
Plaintiffs invoke the much-criticized doctrine of substantive due process to argue that
N.D. Const. art. XI, § 28 and N.D.C.C. §§ 14-03-01 and 14-03-08 violate the Due
Process Clause. Because of its “‘reluctan[ce] to expand the concept of substantive due
process,’” Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (quoting Collins v. City

7
The Tenth Circuit assumed “‘fostering a child-centric marriage culture that encourages
parents to subordinate their own interests to the needs of their children’; (2) ‘children
being raised by their biological mothers and fathers—or at least by a married mother
and father—in a stable home’; [and] (3) ‘ensuring adequate reproduction’” were
compelling compelling reasons for traditional marriage laws. Kitchen, 2014 WL
2868044, at *22.
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25
of Harker Heights, 503 U.S. 115, 125 (1992)), the Supreme Court has carefully limited
the standard for identifying fundamental rights protected by the Due Process Clause.
The Court’s “established method of substantive-due-process analysis” has “two primary
features.” Id. First, the Due Process Clause provides protection only to “those
fundamental rights and liberties which are objectively, ‘deeply rooted in this Nation’s
history and tradition’, and ‘implicit in the concept of ordered liberty’, such that ‘neither
liberty nor justice would exist if they were sacrificed.’” Id. at 720-21 (citations omitted).
“Our Nation’s history, legal traditions, and practices thus provide the crucial ‘guideposts
for responsible decisionmaking’ that direct and restrain [judicial] exposition of the Due
Process Clause.” Id. at 721 (quoting Collins, 503 U.S. at 125). Second, identification of
fundamental rights “require[s] . . . a ‘careful description’ of the asserted fundamental
liberty interest.” Id. (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).
This reluctance is based on the Court’s recognition that under our constitutional
system of government some issues are properly decided, not by judges, but in “the
arena of public debate and legislative action.” Id. at 720. Judicial recognition of a new
right “place[s] the matter outside the arena of public debate and legislative action.” Id.
Consequently, courts “exercise the utmost care whenever [they] are asked to break new
ground in this field.” Collins, 503 U.S. at 125. Otherwise, the rights “protected by the
Due Process Clause [can] be subtly transformed into the policy preferences of the
[court].” Glucksberg, 521 U.S. at 720. As explained by the Ninth Circuit Court of
Appeals: “[W]hen a right is not rooted in our constitutional text, traditions, or history, our
authority as judges is at its end. We must then leave the task of identifying and
protecting new rights where the Constitution leaves it—with the political branches and
the people.” Log Cabin Republicans v. United States, 658 F.3d 1162, 1170 (9
th
Cir.
2011).

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A. The right to marry does not include the right to marry a person of the same
gender.

The “careful description” of an asserted fundamental right must be precise and not
overly broad. In Reno v. Flores, 507 U.S. 292 (1993), the Supreme Court determined the
right at issue in a challenge to a regulation governing release of detained alien juveniles
was not the right to be free from physical restraint, but was the narrower “alleged right of a
child who has no available parent, close relative, or legal guardian, and for whom the
government is responsible, to be placed in the custody of a willing-and-able private
custodian rather than of a government-operated or government-selected child-care
institution.” Id. at 302. Similarly, in Glucksberg the Court criticized a lower federal court for
broadly defining the claimed right as a “right to die,” when the right at issue was really the
asserted “right to commit suicide” and to have assistance in doing so. 521 U.S. at 722-23.
Plaintiffs’ asserted “right to marry the unique person of one’s choice”, Doc. 19
¶ 145, properly described, alleges a fundamental right to marry someone of the same
sex. See In re Marriage of J.B. & H.B., 326 S.W.3d at 675 (concluding the precise
rights claimed by appellee should be defined as “the right to marry a person of the same
sex,” “not as the right to marry whomever one chooses”); see also Kitchen v. Herbert,
No. 13-4178, 2014 WL 2868044, *36 (10
th
Cir. June 25, 2014) (Kelly, C.J., dissenting)
(stating “same-gender marriage is a very recent phenomenon” and the case “is better
understood as an effort to extend marriage to persons of the same gender by redefining
marriage;” “[I[t is entirely appropriate for the State to characterize the right sought as
one of ‘same-gender marriage’ and focus attention on its recent development.”). No
such fundamental right exists.
It is undisputed that marriage – as traditionally defined – is a fundamental right.
See Loving, 388 U.S. at 12 (marriage is a “fundamental freedom” that may “not be
restricted by invidious racial descriptions”); Glucksberg, 521 U.S. at 719 (citing Loving as
establishing a fundamental right to marry). But Plaintiffs’ Complaint goes further by
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27
alleging a fundamental right to marry a person of the same sex, a right or liberty
undeniably not deeply rooted in this Nation’s history and tradition. Supreme Court
decisions touching on the fundamental right to marry have always involved opposite-sex
couples, which is deeply rooted in this Nation’s history and tradition. See Maynard v. Hill,
125 U.S. 190, 211 (1888) (Marriage “is the foundation of the family and of society, without
which there would be neither civilization nor progress.”); Skinner v. Oklahoma ex rel.
Williamson, 316 U.S. 535, 541 (1942) (“Marriage and procreation are fundamental to the
very existence and survival of the race.”); Zablocki, 434 U.S. at 386 (“[A] decision to marry
and raise the child in a traditional family setting must receive . . . protection.”). When the
Supreme Court has spoken of a fundamental right to marry, it had in mind this universal
historical definition.
Marriage defined as the relationship between a man and a woman was reflected
in prominent dictionaries from the time of the framing and ratification of the Fourteenth
Amendment. See, e.g., Noah Webster, Etymological Dictionary 130 (1st ed. 1869);
Joseph E. Worcester, A Primary Dictionary of the English Language 176 (1871); John
Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States
105 (12
th
ed. 1868). Indeed, “[u]ntil a few decades ago, it was an accepted truth for
almost everyone who ever lived, in any society in which marriage existed, that there
could be marriages only between participants of different sex.” Hernandez, 855 N.E.2d
at 8. See also Standhardt, 77 P.3d at 458 (rejecting argument the “freedom of choice to
marry” is unrestricted, encompassing the right to marry anyone, including a same-sex
partner, because “[i]mplicit in Loving and predecessor opinions is the notion that
marriage, often linked to procreation, is a union forged between one man and one
woman”).
When Plaintiffs broadly invoke the “freedom to marry” they cannot escape the
history and meaning of the right – which is to enter a legal union with a person of the
opposite gender. Plaintiffs’ asserted right to marry a person of the same gender is a
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 40 of 50
28
novel “right” not deeply rooted in this Nation's history and tradition.
B. Same-sex marriage is not deeply rooted in this Nation's history and
tradition.

Substantive due process dictates that “[a] fundamental right or liberty interest is
one that is ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the
concept of ordered liberty.’” Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10
th
Cir.
2008) (quoting Chavez v. Martinez, 538 U.S. 760, 775 (2003)). “Without these rights,
‘neither liberty nor justice would exist.’” Seegmiller, 528 F.3d at 767 (quoting Palko v.
Connecticut, 302 U.S. 319, 325 (1937)).
Is the right to marry a person of the same sex deeply rooted in this Nation's
history and tradition? “Plainly, it is not.” In re Marriage of J.B. & H.B., 326 S.W.3d at
675. Far from being “‘objectively, “deeply rooted in this Nation’s history and tradition,”’”
same-sex marriage was unknown in the laws of this Nation before 2003.
8
See
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 989 (Mass. 2003) (quoting Moore v.
City of E. Cleveland, 431 U.S. 494, 502 (1977)). Since then a dozen States have
approved same-sex marriage through the “exercise of [their] sovereign authority within
our federal system . . . .” Windsor, 133 S. Ct. at 2692. But these very recent
developments among a minority of States hardly transform same-sex marriage into a
“deeply rooted” historical and traditional right. In sum, there is no long history of the
claimed right. “The mere novelty of such a claim is reason enough to doubt that
‘substantive due process’ sustains it.” Flores, 507 U.S. at 303. To declare the due
process right sought by the Plaintiffs, this Court “would have to reverse centuries of
legal doctrine and practice, and strike down the considered policy choice of almost
every State.” Glucksberg, 521 U.S. at 723 (“‘If a thing has been practiced for two
hundred years by common consent, it will need a strong case for the Fourteenth
Amendment to affect it.’” (quoting Flores, 507 U.S. at 303)). Here, just as in

8
Even abroad, no foreign nation allowed same-sex marriage until the Netherlands in
2000. See Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting).
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 41 of 50
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Glucksberg, “[t]he history of [the asserted right] in this country has been and continues
to be one of the rejection of nearly all efforts to permit it. That being the case . . . the
asserted ‘right’ . . . is not a fundamental liberty interest protected by the Due Process
Clause.” Id. at 728; see also Wilson, 354 F. Supp. 2d at 1307 (holding “the right to
marry a person of the same sex is not a fundamental right under the Constitution”); In re
Kandu, 315 B.R. at 140 (“Employing the analysis set forth by the Supreme Court for
purposes of identifying fundamental liberties, there is no basis for this Court to
unilaterally determine at this time that there is a fundamental right to marry someone of
the same sex.”); Standhardt, 77 P.3d at 459 (stating “same-sex marriages are neither
deeply rooted in the legal and social history of our Nation or state nor are they implicit in
the concept of ordered liberty”); Dean v. Dist. of Columbia, 653 A.2d 307, 333 (D.C.
1995) (“The question, then, is whether there is a constitutional basis under the due
process clause for saying that this recognized, fundamental right of heterosexual
couples to marry also extends to gay and lesbian couples. The answer, very simply, is
‘No.’”); Baehr v. Lewin, 852 P.2d 44, 57 (Haw. 1993) (“Applying the foregoing standards
to the present case, we do not believe that a right to same-sex marriage is so rooted in
the traditions and collective conscience of our people that failure to recognize it would
violate the fundamental principles of liberty and justice that lie at the base of all our civil
and political institutions.”); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973)
(“We find no constitutional sanction or protection of the right of marriage between
persons of the same sex.”); Conaway, 932 A.2d at 624-29 (holding same-sex marriage
is not so deeply rooted in Maryland or the country as a whole that it should be regarded
as a fundamental right); In re Marriage of J.B. & H.B., 326 S.W.2d at 675-76 (holding
“the right to legal recognition of a same-sex marriage is not a fundamental right for
equal-protection purposes”); Andersen, 138 P.3d at 979-80 (holding the fundamental
right to marry does not include the right to marry a person of the same sex).
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 42 of 50
30
Windsor offers no help to the Plaintiffs. Both majority and dissenting members of
the Court conceded the novelty of same-sex marriage. See Windsor, 133 S. Ct. at 2689
(stating until recent years “marriage between a man and woman no doubt had been
thought of by most people as essential to the very definition of that term and to its role
and function throughout the history of civilization”); id. at 2696 (Roberts C.J., dissenting)
(DOMA “retain[ed] the definition of marriage that, at that point, had been adopted by
every State in our Nation, and every nation in the world”); id. at 2706-07 (Scalia J.,
dissenting) (noting that the majority opinion “does not argue that same-sex marriage is
‘deeply rooted in this Nation’s history and tradition’, a claim that would of course be
quite absurd” (quoting Glucksberg, 521 U.S. at 720-21)); id. at 2715 (Alito J. dissenting)
(“It is beyond dispute that the right to same-sex marriage is not deeply rooted in this
Nation’s history and tradition.”).
But Windsor does identify a practice deeply rooted in our constitutional
tradition—the “historic and essential authority” of the states “to define the marital
relation . . . .” Id. at 2692. The power to define marriage, the Court said, “is the
foundation of the State’s broader authority to regulate the subject of domestic relations
with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of
marital responsibilities. ‘[T]he states, at the time of the adoption of the Constitution,
possessed full power over the subject of marriage and divorce . . . .’” Id. at 2691
(citations omitted). This power, the Court said, was “of central relevance” to the
outcome of Windsor. Id. at 2692. Thus, far from recognizing a deeply-rooted right to
same-sex marriage that trumps contrary state definitions, Windsor reaffirmed the long-
established authority of states (including North Dakota) to define marriage.
Failing both elements of the Glucksberg standard, Plaintiffs’ asserted right to
marry a person of the same sex is not entitled to heightened protection under the Due
Process Clause. See 521 U.S. at 720-21.

Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 43 of 50
31
IV. The challenged provisions do not discriminate based on gender.
Plaintiffs attempt to avoid rational-basis review by arguing that the man-woman
definition of marriage constitutes gender discrimination, see Doc. 19 ¶ 135, which
would, if true, require heightened (but not strict) scrutiny, see City of Cleburne, 473 U.S.
at 440-41. Plaintiffs might have a point if North Dakota law actually treated the genders
differently, say, by forbidding a man from marrying another man while allowing a woman
to marry another woman, or vice versa. But the North Dakota constitutional provision
and statutes do not do that. The provisions are generally and neutrally applicable to
both genders. Neither a man nor a woman may marry a person of the same sex. Thus,
there is no gender discrimination because the laws treat men and women equally.
As explained by one federal court:
The laws at issue here are not directed toward persons of any
particular gender, nor do they affect people of any particular gender
disproportionately such that a gender-based animus can reasonably be
perceived. . . . [H]ere, the burden on men and women is the same. The
distinction might be gender based if only women could marry a person of
the same sex, or if only women could marry a transgendered person, or if
the restriction included some other asymmetry between the burdens
placed on men and the burdens placed on women. But there is no
distinction here between men and women . . . .

Sevcik, 911 F. Supp. 2d at 1005;
9
see also Jackson, 884 F. Supp. 2d at 1098 (citing
cases and noting agreement with the “vast majority of courts considering the issue” that
the traditional definition of marriage “does not constitute gender discrimination.”).
V. Plaintiffs’ right to travel claim fails to state a claim.
A. The right to interstate travel embraces three components.
The right to interstate travel is a fundamental right recognized by the United
States Constitution. The Eighth Circuit in Minnesota Senior Federation v. United States,

9
State Defendants’ citation of this part of the court’s analysis does not mean State
Defendants agree that the intent behind North Dakota’s marriage laws “is to prevent
homosexuals from marrying.” See 911 F. Supp.2d at 1005. Significant distinctions
exist between North Dakota’s marriage laws and Nevada’s marriage and domestic
partnership laws. See id. at 1000 (summarizing Nevada’s marriage and domestic
partnership laws).

Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 44 of 50
32
273 F.3d 805, 809 (8
th
Cir. 2001) described the right as follows:
Although the word travel is not found in the Constitution, the
Supreme Court has frequently recognized “the constitutional right to
travel from one State to another”. Saenz v. Roe, 526 U.S. 489, 498, 119
S.Ct. 1518, 143 L.Ed.2d 689 (1999) (quotation omitted). Because travel
is a fundamental right, “any classification which serves to penalize the
exercise of that right, unless shown to be necessary to promote a
compelling governmental interest, is unconstitutional.” Shapiro v.
Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). In
Saenz, 526 U.S. at 500, 119 S.Ct. 1518, the Court recently reviewed its
many right-to-travel cases and concluded that this right –

embraces at least three different components. It protects the right
of a citizen of one State to enter and to leave another State, the
right to be treated as a welcome visitor rather than an unfriendly
alien when temporarily present in the second State, and for those
travelers who elect to become permanent residents, the right to be
treated like other citizens of that State.

273 F.3d at 809.
A State law does not burden the right to interstate travel unless it affects a
component of the right. Saenz v. Roe, 526 U.S. 489, 500 (1999). The first component
of the right, the right to move from State to State, is affected when a statute directly
imposes an obstacle on travelers. Id. at 500-01.
The second component, the right to be temporarily present in a second State, is
protected by the Privileges and Immunities Clause of the United States Constitution (art.
IV, § 2, cl. 1). Toomer v. Witsell, 334 U.S. 385, 395-96 (1948).
10

The third component of the right to interstate travel, the right to be treated like
other citizens of the second state, is protected by the Equal Protection Clause of the
Fourteenth Amendment. Saenz, 526 U.S. at 502-03. This right is affected when a
State law places some burden on citizens of other States who move to the new State,
but not on State residents. It is not a right “to live where you want.” Doe v. Miller, 405
F.3d 700, 713-14 (8
th
Cir. 2005).


10
Plaintiffs’ Complaint does not allege a violation of this component of the right to
interstate travel. See Doc. 19 ¶¶ 153-55.
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 45 of 50
33
B. The challenged provisions do not violate the right to travel.
With regard to the first component of the right to travel, the Eighth Circuit has
rejected as a matter of law a “fundamental right to travel” claim when a statute does not
directly address or impair free interstate movement. Doe, 405 F.3d at 712. The Doe
Court rejected the claim that state laws restricting the locations where a registered sex
offender could reside were an unconstitutional violation of the right to travel. The Court
held that statutes that place no obstacles to free ingress and regress to or from the
State, and treated nonresidents visiting or moving into the State no differently that
current residents of the State, did not infringe on the right to interstate travel. Id. The
Eight Circuit stated:
That the statute may deter some out-of-state residents from
traveling to Iowa because the prospects for a convenient and
affordable residence are less promising than elsewhere does not
implicate a fundamental right recognized by the Court’s right to
travel jurisprudence.

Id.
The challenged provisions place no obstacles to free ingress and regress to or
from North Dakota. Accordingly, they do not violate the first component of the right to
interstate travel.
As stated in Doe, a statute that treats nonresidents moving into a State no
differently than current residents of the State does not violate the third component of the
right to travel. Id. This means the fact State-provided benefits, such as those
associated with a State’s marriage laws, are different between States does not establish
a claim based on the fundamental right to interstate travel unless the laws treat
nonresidents moving into a State differently than current residents of the State.
In Califano v. Gautier Torres, 435 U.S. 1 (1978), a right to travel equal protection
claim was made because Supplemental Security Income benefits plaintiffs received
while residing in Connecticut, Massachusetts, and New Jersey were terminated when
they moved to Puerto Rico. Id. at 2-3. Rejecting the claim, the Supreme Court
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 46 of 50
34
emphasized that “‘the right of interstate travel must be seen as insuring new residents
the same right to vital governmental benefits and privileges in the States to which they
migrate as are enjoyed by other residents.’” Id. at 4 (quoting Memorial Hosp. v.
Maricopa County, 415 U.S. 250, 261 (1974)). The Court unequivocally rejected the
position “that the Constitution requires that a person who travels to [another State] must
be given benefits superior to those enjoyed by other residents of [the new State] if the
newcomer enjoyed those benefits in the State from which he came.” Id. It wrote: “This
Court has never held that the constitutional right to travel embraces any such doctrine,
and we decline to do so now.” Id.
The Eighth Circuit’s decision in Minnesota Senior also directly addressed this
component of the right to interstate travel. It concerned a challenge to the differences in
Medicaid benefits available in different States. In Minnesota Senior, the Eighth Circuit
affirmed dismissal of the case: “Here, [Plaintiff] would be treated equally with other
Minnesotans if she moved there; she is deterred from moving because she would be
voluntarily giving up more generous benefits available in Florida.” 273 F.3d at 810.
Thus, the fact that different benefits are available in one State versus another is not
sufficient to state a claim based on the right to travel.
The challenged North Dakota provisions apply equally to North Dakota residents
and to those who move into North Dakota to become a resident. The fact North
Dakota’s marriage laws are different from the marriage laws of some other States does
not establish a viable claim that the challenged provisions violate the right to interstate
travel. There is no claim that any of the challenged provisions treat any of the Plaintiffs
differently from any other North Dakota resident.
VI. North Dakota may lawfully deny recognition of same-sex marriages
performed elsewhere.

A. Federal law authorizes North Dakota to deny recognition to same-sex
marriages.

“Section 2 [of DOMA], which has not been challenged here, allows States to
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 47 of 50
35
refuse to recognize same-sex marriages performed under the laws of other States.”
Windsor, 133 S. Ct. at 2682-83. Section 2 of DOMA provides:
No State, territory, or possession of the United States, or Indian tribe,
shall be required to give effect to any public act, record, or judicial
proceeding of any other State, territory, possession, or tribe respecting a
relationship between persons of the same sex that is treated as a
marriage under the laws of such other State, territory, possession, or
tribe, or a right or claim arising from such relationship.

28 U.S.C. § 1738C.
This wholly unremarkable measure codifies what has always been federal law:
one state may reject a marriage performed in another State when that marriage violates
the public policy of the forum state.
B. The Constitution does not require North Dakota to recognize same-sex
marriages contrary to its public policy.

“[T]he Full Faith and Credit Clause does not require a State to apply another
State’s law in violation of its own legitimate public policy.” Nevada v. Hall, 440 U.S. 410,
422 (1979). “‘Full faith and credit . . . does not . . . enable one state to legislate for the
other or to project its laws across state lines so as to preclude the other from prescribing
for itself the legal consequences of acts within it.’” Id. at 423-24 (quoting Pac.
Employers Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493, 504-05 (1939)).
Even before DOMA, it was well-settled that a State need not recognize out-of-
state marriages that are illegal if performed in that State. This is because “the Full Faith
and Credit Clause does not compel ‘“a state to substitute the statutes of other states for
its own statutes dealing with a subject matter concerning which it is competent to
legislate.”’” Franchise Tax Bd. v. Hyatt, 538 U.S. 488, 494 (2003) (quoting Sun Oil Co.
v. Wortman, 486 U.S. 717, 722 (1988)).
North Dakota law unambiguously forbids recognition of same-sex marriages.
See N.D. Const. art. XI, § 28; N.D.C.C. §§ 14-03-01, 14-03-08. Because North
Dakota’s public policy prohibits the recognition of same-sex marriages, wherever
performed, the Full Faith and Credit Clause does not obligate North Dakota to recognize
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 48 of 50
36
a same-sex marriage performed in another state or country. See Wilson, 354 F. Supp.
2d at 1303-04 (holding “Florida is not required to recognize or apply Massachusetts’
same-sex marriage law because it clearly conflicts with Florida's legitimate public policy
of opposing same-sex marriage”); In re Marriage of J.B. & H.B., 326 S.W.3d 654 (State
law proscribing consideration of a petition for divorce by a party to a same-sex marriage
performed elsewhere did not violate Equal Protection Clause).
CONCLUSION
Defendants Jack Dalrymple, in his official capacity as Governor, Wayne
Stenehjem, in his official capacity as Attorney General, Ryan Rauschenberger, in his
official capacity as Tax Commissioner, and Terry Dwelle, in his official capacity as State
Health Officer, respectfully request that this Court dismiss with prejudice Plaintiffs’ First
Amended Complaint for Permanent Injunction and Declaratory Relief (Doc. 19).
Dated this 1
st
day of July, 2014.

State of North Dakota
Wayne Stenehjem
Attorney General

By: /s/ Douglas A. Bahr
Douglas A. Bahr
Solicitor General
State Bar ID No. 04940
Office of Attorney General
500 North 9
th
Street
Bismarck, ND 58501-4509
Telephone (701) 328-3640
Facsimile (701) 328-4300
Email dbahr@nd.gov

Attorneys for Defendants Jack Dalrymple, in
his official capacity as Governor, Wayne
Stenehjem, in his official capacity as Attorney
General, Ryan Rauschenberger, in his official
capacity as Tax Commissioner, and Terry
Dwelle, in his official capacity as State Health
Officer.

e:\dixie\cl\bahr\briefs\constitution.brf\ramsay\pleadings\motion to dismiss memorandum.docx
Case 3:14-cv-00057-KKK Document 29 Filed 07/01/14 Page 49 of 50

CERTIFICATE OF SERVICE
Case No. 3:14-CV-57
I hereby certify that on July 1, 2014, the following document: MEMORANDUM
IN SUPPORT OF MOTION TO DISMISS was filed electronically with the Clerk of Court
through ECF, and that ECF will send a Notice of Electronic Filing (NEF) to Joshua
Newville, Tom Fiebiger, and Scott Porsborg.

/s/ Douglas A. Bahr
Douglas A. Bahr
Solicitor General
State Bar ID No. 04940
Email dbahr@nd.gov

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