January 12, 2015 at 3:47 pm EDT | by Chris Johnson
Court strikes down South Dakota ban on same-sex marriage

same-sex marriage, gay news, Washington Blade

A federal court has struck down South Dakota’s ban on same-sex marriage.

A federal judge in South Dakota became the latest to rule against a ban on same-sex marriage on Monday, striking down the state’s law on the basis that it violates rights under the Fourteenth Amendment.

In a 28-page decision, U.S. District Judge Karen Schreier, a Clinton appointee, grants summary judgement to plaintiff same-sex couples in the case, saying South Dakota’s marriage ban runs contrary to their rights to equal protection and due process under the U.S. Constitution.

“In Loving, the Supreme Court addressed a traditionally accepted definition of marriage that prohibited Mildred Jeter and Richard Loving from marrying,” Schreier writes. “Because Virginia’s laws deprived that couple of their fundamental right to marriage, the Court struck down those laws. Little distinguishes this case from Loving. Plaintiffs have a fundamental right to marry. South Dakota law deprives them of that right solely because they are same-sex couples and without sufficient justification.”

Although plaintiffs in the case have opposed a stay, the decision is halted for the time being, so same-sex couples won’t be able to marry at this time in South Dakota.

“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 writes.

South Dakota Attorney General Marty Jackley, a Republican who’s been defending the state’s marriage ban in court, has the option of appealing the decision to the U.S. Eighth Circuit Court of Appeals. Two other cases seeking marriage equality are already pending before the federal appeals court, one from Missouri, the other from Arkansas.

“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. “Because this case presents substantial legal questions and substantial public interest the federal court has stayed its judgment allowing South Dakota law to remain in effect pending the appeal.”

The lawsuit was filed by private attorneys in South Dakota and the National Center for Lesbian Rights on behalf of six same-sex couples living in the state. Three of these couples are seeking to right to wed in South Dakota and other three want the state to recognize their same-sex marriages performed elsewhere.

Christopher Stoll, a senior attorney with the National Center for Lesbian Rights, commended Schreier for writing a “detailed and powerful analysis” against the ban on same-sex marriage in South Dakota.

“We are thrilled for our clients and for all same-sex couples in South Dakota, who have watched and waited as progress has been made in so many other states, and who can now see light at the end of the tunnel in their own state,” Stoll said.

Joshua Newville, an associate attorney at the Minneapolis-based law firm of Madia Law LLC and co-counsel in the case, urged South Dakota to refrain from appealing the case, saying the “writing is on the wall” not to do that. But in event the state appeals the case, Newville said he’ll challenge the district court to lift its stay.

The Supreme Court has “not been kind” to states seeking a stay on rulings in favor of marriage equality, Newville said, a reference the court’s recent refusal to halt gay nuptials in Alaska, Idaho, South Carolina, Florida and Kansas.

In her reasoning for striking down the law, Schreier applies strict scrutiny, or a strong assumption that a law is unconstitutional, as she evaluates South Dakota’s ban on same-sex marriage.

“Because strict scrutiny applies to analyze deprivations of fundamental rights claims, the court will apply strict scrutiny here,” Schreier writes.

Notably, although many others courts have found state bans on same-sex marriage are unconstitutional based on the Supreme Court’s 2013 decision against the Defense of Marriage Act, Schreier determined that ruling doesn’t apply here because the court “limited its holding to marriages already permitted by state law and stopped short of requiring that states recognize same-sex marriage under the Constitution.”

Instead, she renders her decision based on judicial precedent in the cases of Loving v. Virginia, Zablocki v. Redhail and Turner v. Safley, which found a fundamental right to marry.

“Even though Loving and Zablocki did not specifically discuss whether the right to marriage includes same-sex marriage, the broad and unqualified discussion of the right to marriage undermines defendants’ assertion that the right at issue is a narrower right to same-sex marriage,” Schreier writes. “Moreover, Loving, Zablocki, and Turner provide no legal support for describing the right at issue as anything other than the fundamental right to marriage. Therefore, defendants’ argument that the court should limit the fundamental right to marriage based on the traditional understanding of that right is contrary to Supreme Court precedent.”

Now that the court in South Dakota has issued its decision, federal judges have yet to rule on pending litigation challenging bans on same-sex marriage in only four states — North Dakota, Nebraska, Georgia and Alabama — following the Supreme Court’s decision against the Defense of Marriage Act.

Evan Wolfson, president of the LGBT group Freedom to Marry, commended Schreier for striking down South Dakota’s marriage ban, but said the time has come for the U.S. Supreme Court to take action on the pending litigation seeking the right to gay nuptials.

“Today’s ruling out of South Dakota affirms what nearly every court in the past year has held: loving and committed same-sex couples are guaranteed the freedom to marry by the U.S. Constitution,” Wolfson said. “Every day of denial is a day of tangible hardships for same-sex couples and their families. The Supreme Court should take up a case as soon as possible and end marriage discrimination once and for all.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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