UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

Janet E. Jorgensen and )
Cynthia Phillips, a married couple, )
)
Plaintiff, )
)
v. ) Case No. 3-14-CV-58
)
Michael Montplaisir, in his official capacity )
as County Auditor of Cass County, North )
Dakota, Wayne Stenehjem, in his )
official capacity as Attorney General of )
North Dakota, Ryan Rauschenberger, in )
his official capacity as Tax Commissioner )
of North Dakota, and Jack Dalrymple, in )
his official capacity as Governor of North )
Dakota, )
)
Defendants. )
..........................................................................................................................................


_________________________________________________

REPLY 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
Email dbahr@nd.gov

Attorneys for Defendants Wayne Stenehjem, in
his official capacity as Attorney General, Ryan
Rauschenberger, in his official capacity as Tax
Commissioner, and Jack Dalrymple, in his
official capacity as Governor.
Case 3:14-cv-00058-RRE-KKK Document 39 Filed 09/04/14 Page 1 of 12
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TABLE OF CONTENTS AND AUTHORITIES

Page(s)

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

D.N.D. Civ. L. R. 7.1(A)(1) .................................................................................... 1

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

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

United States v. Windsor,
133 S. Ct. 2675 (2013)....................................................................... 1, 2, 3

Schuette v. Coalition to Defend Affirmative Action,
134 S. Ct. 1623 (2014)............................................................................... 2

Kitchen v. Herbert,
755 F.3d 1193 (10
th
Cir. 2014) ................................................................... 2

N.D. Const. art. IV; In re Mangelsen,
843 N.W.2d 8 (N.D. 2014) ......................................................................... 3

Montana-Dakota Utils. Co. v. Johanneson,
153 N.W.2d 414 (N.D. 1967) ..................................................................... 3

Damron v. Damron,
670 N.W.2d 871 (N.D. 2003) ................................................................. 3, 4

N.D.C.C. 14-09-06.6 .......................................................................................... 3

State ex rel. D.D. v. G.K.,
611 N.W.2d 179 (N.D. 2000) ..................................................................... 4

N.D.C.C. 14-09-06.6(5)(b) ................................................................................. 4

II. Baker v. Nelson is binding precedent ................................................................... 4

Baker v. Nelson,
409 U.S. 810 (1972)............................................................................... 4, 5

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

Baker v. Nelson,
Jurisdictional Stmt., No. 71-1027 (Feb. 11, 1971) .................................. 5, 6

Kitchen v. Herbert,
755 F.3d 1193 (10
th
Cir. 2014) ............................................................... 5, 7

Frontiero v. Richardson,
411 U.S. 677 (1973)................................................................................... 5
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Romer v. Evans,
517 U.S. 620 (1996)................................................................................... 5

Lawrence v. Texas,
539 U.S. 558 (2003)............................................................................... 5, 6

Windsor v. United States,
699 F.3d 169 (2d Cir. 2012),
affd, 133 S. Ct. 2675 (2013) ...................................................................... 6

III. There is no fundamental right to marry someone of the same sex ....................... 7

Kitchen v. Herbert,
755 F.3d 1193 (10
th
Cir. 2014) ................................................................... 7

Windsor v. United States,
699 F.3d 169 (2d Cir. 2012),
affd, 133 S. Ct. 2675 (2013) ...................................................................... 7

IV. No evidence of impermissible motive exists ......................................................... 7

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

Kitchen v. Herbert,
755 F.3d 1193 (10
th
Cir. 2014) ................................................................... 8

Conclusion ...................................................................................................................... 8







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STATEMENT OF THE CASE
In accordance with D.N.D. Civ. L. R. 7.1(A)(1), Defendants Wayne Stenehjem, in
his official capacity as Attorney General, Ryan Rauschenberger, in his official capacity
as Tax Commissioner, and Jack Dalrymple, in his official capacity as Governor
(collectively State Defendants), file this reply to Plaintiffs Memorandum in Opposition
to Defendants Motion to Dismiss (Doc. 38). State Defendants do not abandon any
arguments or waive any issues raised in their Memorandum in Support of Motion to
Dismiss (Doc. 27) or their Memorandum in Opposition to Plaintiffs Motion for Summary
Judgment (Doc. 36) by not repeating them here.
ARGUMENTS
I. States define marriage.
Plaintiffs correctly point out that, despite the Supreme Courts extensive
discussion of federalism and the States virtually exclusive authority over marriage laws,
the decision in United States v. Windsor, 133 S. Ct. 2675 (2013), is not based on
principles of federalism. That, of course, does not negate the accuracy of the law cited
in Windsor. More importantly, and ignored by Plaintiffs, is that the Windsor decision is
also not based on the Fourteenth Amendment, as are Plaintiffs claims. Id. at 2696; see
also id. at 2705, 2706 (Scalia, J. dissenting) (referring to the rootless and shifting
justifications of the majoritys merits holding and stating the Equal Protection Clause is
not the basis for todays holding).
Plaintiffs correctly quote a portion of a sentence in Windsor while asking the
Court to ignore its implication. See Doc. 38 at 22. The partially quoted sentence reads:
After a statewide deliberative process that enabled its citizens to discuss and weigh
arguments for and against same-sex marriage, New York acted to enlarge the definition
of marriage to correct what its citizens and elected representatives perceived to be an
injustice that they had not earlier known or understood. 133 S. Ct. at 2689. What the
Supreme Court protected in Windsor is the statewide deliberative process used to
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define marriage. Plaintiffs ask that this Court strip North Dakota citizens of their use of
the same deliberative process because they reached a different result than New York.
The Supreme Courts recent statement in Schuette v. Coalition to Defend Affirmative
Action, 134 S. Ct. 1623, 1637 (2014), bears repeating:
The respondents in this case insist that a difficult question of public
policy must be taken from the reach of the voters, and thus removed from
the realm of public discussion, dialogue, and debate in an election
campaign. Quite in addition to the serious First Amendment implications
of that position with respect to any particular election, it is inconsistent with
the underlying premises of a responsible, functioning democracy.

More troubling is that Plaintiffs request that this Court supplant the results of
North Dakotas deliberative process by making its own legislative findings, and they ask
the Court do so without any factual hearing. Such a radical request must be rejected.
See Kitchen v. Herbert, 755 F.3d 1193, 1237-40 (10
th
Cir. 2014) (Kelly, J. dissenting)
(reviewing proper application of rational basis, including that the state has no obligation
to produce evidence, and explaining how Utahs traditional marriage laws easily meet
that test); id. at 1240 (Kelly, J. dissenting) (One only need consider the reams of
sociological evidence urged by the parties and the scores of amicus briefs on either side
to know that the State's position is (at the very least) arguable. It most certainly is not
arbitrary, irrational, or based upon legislative facts that no electorate or legislature could
conceivably believe.).
Plaintiffs reasonably assert that not permitting same-sex couples to marry may
harm children of same-sex couples. That possibility was, of course, one of many
competing considerations the Legislature and the People had to consider and balance
when passing North Dakotas marriage laws. The fact Plaintiffs disagree with the result
of the deliberative process, however, does not make the challenged laws
unconstitutional.
State Defendants acknowledge, as did the Windsor court, 133 S. Ct. at 2691,
that States authority over marriage does not permit States to pass marriage laws in
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violation of the United States Constitution. State Defendants have never argued
otherwise. State Defendants agree that if the Constitution contained a provision
guaranteeing the right to marry a person of the same sex, it would be [this Courts] duty
to enforce that right. But the Constitution simply does not speak to the issue of same-
sex marriage. Id. at 2716 (Alito, J., dissenting).
Plaintiffs incorrectly assert the North Dakota Supreme Court, not the North
Dakota Legislative Assembly and the People of North Dakota, determine North Dakota
public policy. That assertion is contrary to the most fundamental understanding of the
branches of government and separation of powers, the North Dakota Constitution, and
a long line of cases. See N.D. Const. art. IV; In re Mangelsen, 843 N.W.2d 8, 13 (N.D.
2014) (It is for the legislature, not the courts, to identify and determine the public policy
of the state.); Montana-Dakota Utils. Co. v. Johanneson, 153 N.W.2d 414, 423 (N.D.
1967) (The Legislature, under our Constitution, is one of three independent branches of
government. Under the principle of separation of powers, the authority to pass
legislation is vested in the Legislative Branch of the government exclusively. As a part
of the law-making power of the Legislative Assembly, it has the right to determine
legislative policy.). Moreover, Plaintiffs grossly mischaracterize the state supreme
courts decision in Damron v. Damron, 670 N.W.2d 871 (N.D. 2003). Contrary to
Plaintiffs assertion, the supreme court did not hold a parents same-sex relationship
was irrelevant to child welfare considerations for custody purposes. Doc. 38 at 29.
The supreme court simply reviewed and reversed a district courts factual findings
regarding a child custody modification.
In Damron, the North Dakota Supreme Court applied well-settled law in reversing
a district courts modification of child custody because the district court did not make
appropriate factual findings. The supreme court first noted the public policy regarding
custody modifications established by the Legislature, citing N.D.C.C. 14-09-06.6, and
explaining [t]he legislature enacted more rigorous requirements for motions brought
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less than two years after a determination to allow something of a moratorium for the
family during the two-year period after a custody determination. Id. at 874 (quoting
State ex rel. D.D. v. G.K., 611 N.W.2d 179, 181 (N.D. 2000)). It then explained the
movant for the change in custody had the burden to show modification was necessary
to serve the best interests of the children and to show the children's present
environment may endanger their physical or emotional health or impair their emotional
development. Id. at 875. The supreme court then found the movant failed to meet his
burden of proof to justify a change in custody under N.D.C.C. 14-09-06.6(5)(b). Id. at
876. Because there was no evidence to support the trial court's modification of
custody, the supreme court concluded the court's modification of custody [was] clearly
erroneous. Id.
The North Dakota Supreme Courts review and reversal of a district courts
factual findings in a specific case does not establish North Dakotas public policy or
legislative findings regarding marriage. That is done by the People through the North
Dakota Legislative Assembly, the policy-making branch of the government.
II. Baker v. Nelson is binding precedent.
Plaintiffs attempt to distinguish Baker v. Nelson, 409 U.S. 810 (1972), by
asserting the case was decided long before any state or modern nation permitted
same-sex couples to marry. Doc. 38 at 17. The fact no state or nation permitted
same-sex marriage at the time Baker was decided has no relevance to the legal issues
resolved in the case. Moreover, the undisputed fact that no state or nation permitted
same-sex marriage at the time of Baker simply highlights the recent development of
same-sex marriage and that it is not deeply rooted in this Nations history and tradition,
weighing strongly against a finding same-sex marriage is a fundamental right. See
Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting) (What Windsor and the United States
seek, therefore, is not the protection of a deeply rooted right but the recognition of a
very new right, and they seek this innovation not from a legislative body elected by the
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people, but from unelected judges.).
The Baker plaintiffs specifically claimed that the States denial of a marriage
license deprive[d] [them] of their liberty to marry . . . under the Fourteenth Amendment
and violate[d] their rights under the equal protection clause of the Fourteenth
Amendment. Baker v. Nelson, Jurisdictional Stmt., No. 71-1027, at 3 (Feb. 11, 1971).
Summary dismissals are merits rulings as to those questions raised in the jurisdictional
statement. Kitchen, 755 F.3d at 1232 (Kelly, J. dissenting). Though the Supreme
Court may not accord Baker the same deference as an opinion after briefing and
argument, it is nonetheless precedential for this court. Id.
The cases cited by Plaintiffs also do not vitiate Bakers precedential force.
Frontiero v. Richardson, 411 U.S. 677, 688 (1973), held classifications based on sex
are subject to heightened judicial scrutiny. But the challenged laws do not classify
based on sex.
Romer v. Evans, 517 U.S. 620 (1996), had nothing to do with marriage laws and
did not mention Baker. Romer involved the elimination of all basic legal protections and
rights of access to the ordinary political process normally available to all people within
Colorado. Romer applied conventional rational basis 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. Laws defining marriage
between a man and a woman are not a classification unprecedented in our
jurisprudence. Id. at 633.
Like Romer, Lawrence v. Texas, 539 U.S. 558 (2003), did not address the
constitutionality of state marriage laws; it also did not mention Baker. Lawrence held
two adults of the same sex had the right to engage in intimate sexual conduct without
intervention of the government. The Lawrence court expressly informed lower courts
that the case did not involve whether the government must give formal recognition to
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any relationship that homosexual persons seek to enter. Id. at 578; see also id. at 585
(OConnor, J., concurring) (noting that preserving the traditional institution of marriage
would be a legitimate state interest beyond moral disapproval).
Windsor also makes no mention of Baker and certainly does not inform lower
courts that they are no longer bound by Baker. Windsor dealt with the constitutionality
of a federal law defining marriage, not a state law. See Windsor v. United States, 699
F.3d 169, 178 (2d Cir. 2012), affd, 133 S. Ct. 2675 (2013) (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.). The Windsor majority expressly disclaimed any intention to reach the
issue decided in Baker, stating that its opinion and its holding are confined to those
lawful marriages already authorized by state law. 133 S. Ct. at 2696. State and lower
federal courts should take the Court at its word and distinguish away. Id. at 2709
(Scalia, J., dissenting) (Lord, an opinion with such scatter-shot rationales as this one
(federalism noises among them) can be distinguished in many ways.); see also id. at
2706 (Scalia, J., dissenting) (Moreover, if this is meant to be an equal-protection
opinion, it is a confusing one. The opinion does not resolve and indeed does not even
mention what had been the central question in this litigation: whether, under the Equal
Protection Clause, laws restricting marriage to a man and a woman are reviewed for
more than mere rationality.).
If the intent of the Supreme Court in any of the above cases was to overrule or
limit Baker, the Court would have at least mentioned Baker. It did not in any of the
cases. In fact, in both Lawrence and Windsor the Court unequivocally stated it was not
addressing the issue of same-sex marriage. 133 S. Ct. at 2696; 539 U.S. at 578. As
Judge Kelly correctly wrote:
[N]one of these developments can override our obligation to follow (rather
than lead) on the issue of whether a state is required to extend marriage
to same-gender couples. At best, the developments relied upon are
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ambiguous and certainly do not compel the conclusion that the Supreme
Court will interpret the Fourteenth Amendment to require every state to
extend marriage to same-gender couples, regardless of contrary state law.

Kitchen, 755 F.3d at 1233 (Kelly, J. dissenting).
III. There is no fundamental right to marry someone of the same sex.
Plaintiffs cite multiple cases regarding the fundamental right to marry. State
Defendants acknowledge the Supreme Court has found there is a fundamental right to
marry. The Supreme Courts cases regarding the fundamental right to marry, however,
cannot be evaluated devoid of context. While the Supreme Court has recognized a
fundamental right to marriage, it is undisputed that every decision vindicating that right
has involved two persons of the opposite gender. [N]othing suggests that the term
marriage as used in those cases had any meaning other than what was commonly
understood for centuries. Courts do not decide what is not before them. Kitchen, 755
F.3d at 1234 (Kelly, J. dissenting).
Plaintiffs may read Windsor as indicating a majority of the Supreme Court is
willing to create a fundamental right to same-sex marriage. Windsor, however, did not
decide that issue. 133 S. Ct. at 2696. It certainly did not require every state to extend
marriage to same-gender couples, regardless of the contrary views of the electorate
and their representatives. Kitchen, 755 F.3d at 1235 (Kelly, J. dissenting). This Court
should not announce a new fundamental right based on Plaintiffs speculation what the
Supreme Court may decide in the future; it should follow current Supreme Court
precedent, which has never held there is a fundamental right to same-sex marriage.
See id. (But we should be reluctant to announce a fundamental right by implication. Not
only is that beyond our power, it is completely arbitrary and impractical.).
IV. No evidence of impermissible motive exists.
Without any evidence, and contrary to well-established case law, Plaintiffs ask
the Court to ascribe illicit motives to passage of North Dakotas marriage laws. The
Court should decline Plaintiffs invitation.
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Plaintiffs use or quote words like irrational prejudice, impermissibly motivated,
and born of animosity to describe the People and Legislators motivation for passing
North Dakotas marriage laws. Doc. 38 at 25, 26. Yet they provide no evidence to
support such accusations. Absent convincing evidence that the principal purpose of
North Dakotas marriage laws was to codify malice, and that it furthered no legitimate
government interests, the political branches and People should not be tarred with the
brush of bigotry. Windsor, 133 S. Ct. at 2696 (Roberts, J., dissenting). But the multiple
rationales previously articulated for North Dakotas marriage laws give the lie to the . . .
conclusion that only those with hateful hearts could have voted in favor of the laws. Id.
at 2707 (Scalia, J., dissenting); see also Kitchen, 755 F.3d at 1236-40 (Kelly, J.
dissenting) (addressing rational basis for Utahs traditional marriage laws).
CONCLUSION
Defendants Wayne Stenehjem, in his official capacity as Attorney General, Ryan
Rauschenberger, in his official capacity as Tax Commissioner, and Jack Dalrymple, in
his official capacity as Governor, respectfully request that this Court grant State
Defendants Motion to Dismiss (Doc. 24) and deny Plaintiffs Motion for Summary
Judgment (Doc. 13).
Dated this 4
th
day of September, 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 Wayne Stenehjem, in
his official capacity as Attorney General, Ryan
Rauschenberger, in his official capacity as Tax
Commissioner, and Jack Dalrymple, in his
official capacity as Governor.
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CERTIFICATE OF SERVICE
Case No. 3-14-CV-58
I hereby certify that on September 4, 2014, the following document: REPLY
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 John P. Borger and Scott Porsborg.

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

e:\dixie\cl\bahr\briefs\constitution.brf\jorgensen\pleadings\motion to dismiss reply memorandum.docx
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