Attorney to challenge hold on South Dakota same-sex marriage ruling

Attorney Josh Newville speaks to reporters outside the U.S. Courthouse in Sioux Falls, S.D. on Oct. 17, 2014, after the court heard arguments in his challenge to South Dakota's same-sex marriage ban. KEVIN BURBACH [ap]

Attorney Josh Newville speaks to reporters outside the U.S. Courthouse in Sioux Falls, S.D. on Oct. 17, 2014, after the court heard arguments in his challenge to South Dakota's same-sex marriage ban.

Attorney Josh Newville (center) speaks to reporters outside the U.S. Courthouse in Sioux Falls, S.D. on Oct. 17, 2014, after the court heard arguments in his challenge to South Dakota‘s same-sex marriage ban.

SIOUX FALLS, S.D. — An attorney for couples trying to overturn South Dakota’s ban on same-sex marriage says he plans to challenge the hold that a federal judge put on her ruling that the state’s ban on such unions was unconstitutional.

Josh Newville said Tuesday from Minneapolis that he intends within the next month to contest the stay on the order issued Monday by U.S. District Judge Karen Schreier in favor of six same-sex couples who sued in May.

The lawsuit challenges a 1996 state law and a voter-approved 2006 constitutional amendment that bans gay marriage.

Attorney General Marty Jackley said the state will appeal the case to the 8th U.S. Circuit Court of Appeals, a conservative-leaning federal appeals court that in 2006 affirmed Nebraska‘s right to ban same-sex marriages. Jackley said Tuesday that the state has 30 days from when the judgment was entered to file an appeal.

While declaring that the “plaintiffs have a fundamental right to marry,” Schreier also put her ruling on hold, noting that two other district courts have also stayed their decisions while their appeals are pending at the 8th U.S. Circuit. Those are Arkansas and Missouri.

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“Because this case presents substantial and novel legal questions, and because there is a substantial public interest in uniformity and stability of the law, this court stays its judgment pending appeal,” Schreier wrote.

Newville said he understands the desire for judges and the defendants to defer to a higher court, but said there has to be a balance as well. In recent months, he said, federal appellate courts and the U.S. Supreme Court have not “rubber stamped” requests from states to keep bans in place.

“And there’s a possibility that (an appeal) could take a lot of time to unfold, and meanwhile real people’s lives are being affected in a very real way,” he said.

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