SIOUX FALLS, S.D. — A federal judge on Monday declared South Dakota’s same-sex marriage ban unconstitutional, but marriage licenses won’t be immediately issued because the ruling was put on hold pending a potential appeal.
U.S. District Judge Karen Schreier sided in favor of the six couples who filed the lawsuit in May in Sioux Falls. The lawsuit challenges a 1996 state law and a voter-approved 2006 constitutional amendment that ban gay marriage.
“Plaintiffs have a fundamental right to marry,” Schreier wrote. “South Dakota law deprives them of that right solely because they are same-sex couples and without sufficient justification.”
Attorney General Marty Jackley on Monday 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.
“It remains the state’s position that the institution of marriage should be defined by the voters of South Dakota and not the federal courts,” Jackley said.
He said he’s obligated by law to defend both the state constitution and state statutes.
Article continues belowTwo other states – Arkansas and Missouri – already have appealed similar federal district court rulings to the 8th Circuit. This court is generally considered more conservative than others, said Adam Romero, senior counsel in the Williams Institute at the UCLA School of Law. However, Romero warned, judges “from all ideological perspectives” have tended to agree that state marriage bans are unconstitutional since the U.S. Supreme Court decision to strike down the Defense of Marriage Act in 2013.
“While it is impossible to predict what the court will ultimately do, given the large number of judges who have struck down same-sex marriage bans, we can assume that the 8th Circuit will give the marriage bans in this circuit a very, very close scrutiny,” Romero said.
The U.S. Supreme Court again is considering whether to hear a gay marriage case, and more appeals court rulings – especially if they conflict – could increase the likelihood the justices will do so.
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In November, the 6th U.S. Circuit Court of Appeals based in Cincinnati became the first appellate court to recently uphold state bans on same-sex marriage. Plaintiffs from Kentucky, Michigan, Ohio and Tennessee are asking the Supreme Court to reverse that decision. Four other appeals courts – based in Chicago, Denver, San Francisco and Richmond, Virginia – have ruled in favor of gay and lesbian couples. Arguments over bans in three Southern states were held last week before a New Orleans-based appellate court.
Romero said that the more cases that are pending at the 8th Circuit will only increase the pressure on that court to issue its ruling. But the court could put the cases on hold if the Supreme Court decides to take on the issue.
Presently, 36 states and the District of Columbia allow same-sex couples to marry, nearly twice as many as just three months ago.
The South Dakota couples’ attorney, Josh Newville, said Monday’s developments represent the last opportunity for the state’s “elected officials to be on the right side of history” by not appealing Schreier’s decision.
Article continues below“I would say that Attorney General Jackley needs to consider very seriously the amount of money that he’s pouring into this lawsuit on behalf of the state to keep a discriminatory law in place,” Newville said.
Five of the couples have already married in either Iowa, Connecticut or Minnesota. Nancy Rosenbrahn, of Rapid City, married her longtime partner in April in Minneapolis.
“On one hand, this is like the best present ever,” Rosenbrahn said of the decision Monday. “On the other hand, you go back and you say ‘Well, yeah, it should be a yes,’ because we are no different than anybody else. There is no reason to say we can’t get married. There is no valid reason to do that anymore.”
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