SIOUX FALLS, S.D. — A federal judge could decide Friday whether to dismiss a lawsuit challenging South Dakota‘s ban on gay marriage, with attorneys for both sides expected to argue their case as similar fights play out across the nation.
The lawsuit, filed in May by six same-sex couples, challenges a 1996 state law and a voter-approved 2006 constitutional amendment that ban gay marriage. Attorney General Marty Jackley is defending the ban, saying it should be up to voters and state lawmakers – not a judge – to define marriage in South Dakota.
“That’s what this case is about,” Jackley reiterated Thursday in an interview with The Associated Press.
Jackley has asked that the case be dismissed, and both sides will argue their case in Sioux Falls on Friday before U.S. District Court Judge Karen Schreier.
The couples are frustrated that the state is “trying to deny them their day in court,” said their Minneapolis-based attorney, Josh Newville. But he said they remain steadfast in their fight to have the state grant them the right to marry and to recognize same-sex marriages legally performed in other states.
Schreier could rule Friday or file her decision later. If she immediately sides with Jackley, attorneys for the couples have vowed to appeal to the 8th U.S. Circuit Court of Appeals, which also covers federal appeals from Arkansas, Iowa, Minnesota, Missouri, Nebraska and North Dakota.
Article continues belowThe U.S. Supreme Court last week denied appeals from five states, but that decision legalized gay marriage in about 30 states because the cases were appealed from other federal appellate courts that had overturned the bans and have jurisdiction over several states.
The Supreme Court would likely agree to take a gay marriage case if a federal appeals court upholds a state’s ban and thereby creates a split in federal appeals court rulings, Newville said.
Jackley said it was possible though unlikely that South Dakota’s case would end up in the Supreme Court because cases in other states are further along in the courts. The Dakotas were the last states to see lawsuits challenging their gay marriage bans.
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