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Port: Hoeven and Cramer on the wrong side of history, and probably their constituents, on same-sex marriage

"At this point, opposition seems more about obstinance than principle," Rob Port writes.

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The rainbow flag is widely considered a universal symbol for gay rights.
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Note: This column initially indicated that Sen. Cramer did not issue a news release about his Respect for Marriage Act vote. That was wrong. The senator's office issued a release, but it wasn't posted on his social media accounts at the time of publication, and I hadn't received an emailed copy. The column has been edited to fix this error.

MINOT, N.D. — Yesterday a bill to codify same-sex marriage in federal law passed cloture in the United States Senate. Basically, a supermajority vote to end any filibuster of the bill so that it can proceed to a final vote where it will pass or fail based on a simple majority.

Both of North Dakota's senators voted against advancing the bill .

“Same-sex marriage is protected under the Supreme Court’s Obergefell decision and the 14th Amendment," Sen. John Hoeven said in a released statement explaining his vote. "My concern with this bill is that it doesn’t adequately protect religious freedom, that includes both individuals and businesses based on sincerely held religious beliefs, as well as religious organizations.”

“Today’s vote is the first step leading to the normalization of religious discrimination, and it’s a bridge too far," Senator Kevin Cramer said in his own statement . "The Respect for Marriage Act opens up religious institutions and non-profits to senseless litigation challenging the First Amendment liberties enshrined in our Constitution. I wish the federal government never got involved in the marriage business in the first place. Marriage is instituted by God and enforced by His church, it should have stayed that way.”

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Cramer also sent me two fundraising appeals for abortion financier Herschel Walker who, having failed to get a majority in Georgia's general election, is now pursuing a seat in the U.S. Senate in a run-off. Something to consider when contemplating the Senator's religious convictions.

Cramer has signaled his opposition to this legislation before, calling it a "terrible mistake," which puts both him and Hoeven at odds with their House colleague Kelly Armstrong who voted in favor of the legislation earlier this year.

Same-sex marriage between consenting adults should be legal, and its legality shouldn't be built on the unsteady foundation of judicial fiat, as abortion supporters learned when the Supreme Court overturned Roe vs. Wade. That's my opinion.

But let's be clear about what the Respect for Marriage Act does. Currently, as Hoeven alluded, same-sex marriage is legal in every state because the courts said so. Should that legal precedent be struck down, the RMA would require that states recognize same-sex marriages certified in other states.

Congressman Kelly Armstrong
Congressman Kelly Armstrong addresses the North Dakota Republican Party's 2022 state convention in Bismarck on April 2, 2022.
Photo by Kyle Martin

This isn't some novel idea. States already credit things such as driver's licenses from other states. Here's how Armstrong explained it to me when he announced his support for the law :

“The U.S. Constitution’s Full Faith and Credit Clause ensures that lawful proceedings conducted in one state are recognized by the other states," he told. "HR 8404 makes it clear that a marriage performed in one state will be recognized in another, regardless of the sex, race, ethnicity, or national origin of the couple. This bill provides assurance to Americans that their marital status won’t change based on their ZIP code. This is commonsense and in line with multiple Supreme Court decisions."

Basically, North Dakota wouldn't be forced to legalize same-sex marriage if the Obergefell decision is struck down, but our state would recognize those marriages from other states.

What's so bad about that? And why would we assume that a majority of North Dakotans would be opposed to legalizing same-sex marriage?

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In 2004, 73% of North Dakotans voted to put a ban on same-sex marriage in the state constitution. That ban is still in the text of our constitution, and it would be the law again should the courts change course, but would North Dakotans still support it?

A lot has changed since 2004, as this national polling data from Gallup shows . Heck, even the Mormons are supporting same-sex marriage these days.

That's a national trend, not a North Dakota trend, but would sentiments in our state really be so different?

I suspect, should the matter come before voters again, that most of our voters would vote to support same-sex marriage.

Hoeven and Cramer have each said that their problem with the RMA is that it doesn't sufficiently protect religious liberty, but is that a convincing argument?

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Their House colleague disagrees. "Nothing in this legislation requires religious institutions or private businesses to perform marriages, protecting Americans religious liberties and First Amendment rights," he told me in July.

Also, the Senate version of this bill has been further amended to enhance religious liberty protections.

The amendments ensure "nonprofit religious organizations will not be required to provide services, facilities or goods for the celebration of a same-sex marriage, and protects religious liberty and conscience protections available under the Constitution and federal law, including the Religious Freedom Restoration Act," CBS News reports . "It also makes clear the bill does not authorize the federal government to recognize polygamous marriage and safeguards any benefit or status — such as tax-exemptions, grants, contracts or educational funding — of an entity so long as it does not arise from a marriage."

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The bill doesn't really change anything unless the courts act and strike down existing precedent, and even then this law wouldn't counter North Dakota law banning same-sex marriage. It would only require that our state recognize marriages performed in other states.

Also, same-sex marriages have been happening in North Dakota since 2015, when the courts made bans unconstitutional, and can anyone say, with a straight face, that turn of events has had a deleterious impact on our communities?

So what, then, is the problem Sens. Hoeven and Cramer? A dozen of your fellow Republicans in the Senate voted for this bill. The Democrats have shown a willingness to compromise on protections for religious freedom. The tide of public opinion has turned, dramatically, on the question of same-sex marriage.

At this point, opposition seems more about obstinance than principle.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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