Jay Pickthorn / The Argus Leader / AP Photo

Judge rules South Dakota same-sex marriage ban unconstitutional

South Dakota same-sex marriage licenses won’t be immediately issued; ruling was put on hold, pending a potential appeal

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 bars performing and recognizing gay marriages.

"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 obliged by law to defend the state constitution and state statutes.

Two other states — Arkansas and Missouri — already have appealed similar federal District Court rulings to the 8th Circuit. The U.S. Supreme Court again is considering whether to hear a gay marriage case, and more appeals of court rulings — especially if they conflict — could increase the likelihood the justices will do so.

In November the 6th 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 heard last week before a New Orleans–based appellate court.

Presently, 36 states allow same-sex couples to marry, nearly twice as many as just three months ago.

The South Dakota couples' attorney, Josh Newville, said this represents the last opportunity for the state's "elected officials to be on the right side of history" by not appealing Schreier's decision.

"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 already married, in Iowa, Connecticut and Minnesota. Nancy Rosenbrahn of Rapid City, South Dakota, married her longtime partner in April in Minneapolis.

"On one hand, this is like the best present ever," she 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."

The Associated Press

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