In three separate opinions, a three-judge panel delivered instructions upholding lower court rulings against marriage bans in South Dakota, Arkansas and Nebraska.
The three-judge panel consisted of U.S. Circuit Judge Roger Wollman, a Reagan appointee; U.S. Circuit Judge Lavenski Smith, a George W. Bush appointee; and U.S. Circuit Judge William Benton, another George W. Bush appointee.
For Arkansas, the panel affirmed the district court judgment asserting the state’s ban on same-sex is unconstitutional. A motion to dismiss the case filed by the state in the aftermath of the Supreme Court decision on marriage is denied.
For Nebraska, the panel upholds a district court preliminary injunction against the marriage ban and instructs the court to issue final judgment in the case. All pending motions in the case are denied.
For South Dakota, the panel not only affirms the district court ruling against the state’s ban on same-sex marriage, but dismisses a request from the state to dismiss the lawsuit as moot.
But in each of the cases, the decision on whether to lift the stay on rulings against same-sex marriage is left to the lower courts.
“South Dakota’s assurances of compliance with Obergefell do not moot the case,” the panel writes in the South Dakota opinion. “These assurances may, however, impact the necessity of continued injunctive relief. The district court is better positioned to consider the issue on appropriate motion. This court leaves to the court’s discretion whether to vacate the stay of the injunction.”
Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, said same-sex couples are already marrying in the state following the Supreme Court decision.
“Arkansas clerks properly recognized Obergefell as the law of the land and began issuing marriage licenses to couples as soon as the decision came down from SCOTUS, as did all of the other states in the 8th Circuit,” Dickson said. “But it is particularly nice to see explicit acknowledgement that the 8th Circuit’s 2006 decision in Citizens for Equal Protection v. Bruning is overruled.”
Joshua Newville, an associate attorney at the Minneapolis-based law firm of Madia Law LLC and co-counsel in the South Dakota marriage case, said the Supreme Court decision should have spelled immediate relief for plaintiffs in his case, but the Eighth Circuit decision was delayed because of action by the state.
“The South Dakota Attorney General chose instead to continue being an impediment to equality, unnecessarily delaying the inevitable and continuing to drive up the costs in this litigation by making a motion at the 8th Circuit that sought to rewrite the history books, pretending as if South Dakota never violated the Constitution,” Newville said. “It was a meritless argument and a waste of everyone’s time and money.”
Following the Eighth Circuit decision, attorneys on behalf of plaintiff same-sex couples in the South Dakota filed a request asking the district court to lift its stay on the ruling against the state’s ban on same-sex marriage.
Although same-sex couples have already started marrying in South Dakota following the Supreme Court decision even with the district court stay in place, Newville noted South Dakota Attorney General Marty Jackley has said clerks can refuse marriage licenses to gay couples for religious reasons.
“As the district court’s order makes clear, the attorney general is wrong,” Newville said. “Clerks who treat same-sex couples differently than different-sex couples — for any reason whatsoever — violate the Constitution. Any clerk who does so will face a lawsuit.”
The South Dakota attorney general’s office didn’t immediately respond to the Washington Blade’s request to comment.
The remaining states in the Eighth Circuit are North Dakota, Minnesota, Iowa and Missouri. In North Dakota, U.S. District Judge Ralph Erickson declared the state’s ban on same-sex marriage unconstitutional decision after the Supreme Court’s decision on marriage and the state didn’t appeal. The Eighth Circuit already dispensed with the Missouri marriage case. Iowa legalized same-sex marriage through state court order in 2009 and Minnesota legalized it through the legislative process in 2013.