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Why There Should Have Been No Stay in Today's South Dakota Marriage Ruling

BY ARI EZRA WALDMAN

HdakotaAs Towleroad reported, we can put South Dakota in the marriage equality win column. The decision, which you can read here, reads like many of the other pro-equality orders from district courts over the last two years:

First, marriage is a fundamental right;

Second, the Supreme Court has said so many times;

Third, that fundamental right has been denied to same-sex couples;

Fourth, the state has no compelling reason to override such a basic and important right in our democracy.

Therefore, the state's ban on same-sex marriage is unconstitutional.

Q.E.D.

SchreierWhether U.S. District Judge Karen Schreier (pictured) took the fundamental rights approach above or the equal protection approach some other courts have chosen -- gay marriage bans treat same-sex couples differently from opposite-sex couples for no good reason and are, therefore, a violation of the guarantee of equal rights -- the result is the same.

The result in the South Dakota case also resembled many of the other district court cases from almost every other state in that implementation of the order was stayed pending appeal.

This used to be standard practice. Judges have been staying their marriage equality rulings since Judge Walker decided that Proposition 8 was unconstitutional back in August, 2010. Back then, it seemed like the safe way to go. We were, after all, breaching new ground.

It no longer makes any sense, not after the Supreme Court refused to grant a stay in Florida pending appeal. As I argued previously, the Court's refusal to extend the stay beyond January 5, 2015 was special because it was the first time the Court let stand a pro-marriage equality decision in a jurisdiction where the appellate court (11th Circuit, in this case) had not yet spoken. Everywhere else, in South Carolina, for example, or in Idaho, the Court let marriage equality go into effect because the Fourth and Ninth Circuits, respectively, had spoken. 

South Dakota is in the Eighth Circuit, which has not had occasion to decide a marriage equality case in the post-Windsor world. Therefore, with respect to the stay, South Dakota is just like Florida: a state with a pro-equality federal district court decision that should not be stayed even though the superior circuit court has not yet spoken.

It is a shame the stay was put into effect. The judge was probably just being cautious. But her caution extends the hours of discrimination and second-class citizenship for thousands of gay men and women.

***

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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


Federal Judge Strikes Down South Dakota's Gay Marriage Ban

A federal judge has just issued a ruling striking down South Dakota's ban on same-sex marriage. The order has been stayed pending appeal.

SdFrom U.S. Judge Karen Schreier's ruling:

In Loving, the Supreme Court addressed a traditionally accepted definition of marriage that prohibited Mildred Jeter and Richard Loving from marrying. 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.

S

South Dakota Attorney General Marty Jackley has issued a statement:

“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. 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."

Full ruling below:

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Federal Judge Denies South Dakota's Motion to Dismiss Challenge to State Gay Marriage Ban

The lawsuit challenging South Dakota's marriage equality ban has received the green light from U.S. Judge Karen Schreier after she rejected the state's motion for the case to be dismissed on Friday. 

Via press release:

South dakotaIn a 28-page opinion, issued Friday afternoon, Judge Schreier agreed with the plaintiffs, writing, “Given the subsequent developments recognized almost uniformly by federal courts following the Supreme Court’s decision in Windsor, Baker is no longer binding authority. Although Bruning explained that sexual orientation is not a suspect class, it did not address whether marriage is a fundamental right. Thus, those cases do not foreclose relief on plaintiffs’ due process and equal protection claims.”

The Court will now consider the legitimacy of the marriage bans. Judge Schreier ordered state officials to respond to the plaintiffs’ motion for summary judgment within ten days. The State must explain why its refusal to wed same-sex couples and its refusal to recognize out-of-state marriages of same-sex couples do not violate U.S. Constitution guarantees of due process, equal protection, and the right to travel.

Here's the current marriage map via Freedom to Marry:

Marriage map

Here's the order via Equality Case Files:


South Dakota Police Identify Two Wanted For Questioning In Assault Case Tied To Anti-Gay Slur

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Police in Sioux Falls, South Dakota have identified two people wanted for questioning in connection to the assault of local resident, 27-year-old Drew Bartscher, KELO reports.

Bartscher, who is straight, was brutally attacked after he told a woman who called him and his friends "faggots" that she should not use that word. "It's rude," he said. Bartscher was then attacked by the woman's boyfriend:

"Then I hear this guy yell at me, 'What the F did you say to my girlfriend?!?!'  I turned just a little bit and then the next thing I know, my friends are picking me up off the sidewalk, (because) I had gotten punched pretty good," Bartscher said.

Just hours after releasing photos to the media of two individuals wanted for questioning, police were able to identify both. However, it is not known "if the man or woman in the photos had anything to do with the assault or if they just saw what happened."

KELO also points out that the incident has not gone unnoticed by local elected officials: "Mayor Mike Huether mentioned the attack in a recent news conference calling on the city to do more to fight domestic violence, bullying and prejudice."


South Dakota Man Attacked for Speaking Out Against Woman Using Anti-gay Slur: VIDEO

Bartscher

A 27-year-old man from Sioux Falls, South Dakota  is nursing a head injury after being retaliated against for calling out a woman on her use of an anti-gay slur. Drew Bartscher was waiting with his two friends outside a downtown bar Saturday night when he heard a girl calling Bartscher and his friends "faggots," KELO-TV reports:

Bartscher2"I hear a woman regard -- make a comment to her boyfriend.  Uh, along the lines of, 'These F-ing F-words.'  Referring to homosexuals," Bartscher said.

Bartscher, who was in crowd with two of his friends outside of Wiley's Tavern, could have said nothing and walked away.  Instead, he said he politely told her she should not say that word

"It's rude," Bartscher said.

What happened next blindsided him.

"Then I hear this guy yell at me, 'What the F did you say to my girlfriend?!?!'  I turned just a little bit and then the next thing I know, my friends are picking me up off the sidewalk, (because) I had gotten punched pretty good," Bartscher said.

Batscher, who is straight, said that while he's a bit embarrassed about his shiner, he's not ashamed for standing up for what he believes in. He credits his parents with giving him the values to find the courage to stand up for the gay community and hopes to pass these traits on to his two girls. 

What a great dad and ally. 

Watch a KELO-TV report on the story, AFTER THE JUMP...

Continue reading "South Dakota Man Attacked for Speaking Out Against Woman Using Anti-gay Slur: VIDEO" »


Catholic High School Stands Behind Openly Gay Coach

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As we have reported many times before, Catholic schools do not have a good track record with gay teachers. As such, one would be forgiven for thinking that a story about a gay coach for a Catholic school, in South Dakota no less, would be one that ended in tragedy. Unbelievably, this is not the case; quite the opposite in fact.

Last week the volleyball and baseball coach for St. Mary High School, a Catholic school in Dell Rapids, South Dakota, Nate Alfson came out in an email to Outsports. Said Alfson of his follow-up meeting with the school:

The meeting with the school went great. We talked about being on the same page as each other and that they were willing to walk through this with me and support me. They want me to be their volleyball coach again and that I was a great role model to the athletes.

I couldn't be happier that they are supportive and want me to be a part of the coaching team. It's a sense of relief to be able to move forward and focus on volleyball and the girls. This season is about them and the hard work they put in. The support has been amazing and I can't wait to live a free life!

It's almost as if Alfson's orientation has no bearing whatsoever on his ability to be a leader, teacher, and role model. Congratulations to St. Mary for acknowledging and supporting Alfson's worth as a teacher and a person rather than dragging everyone down with archaic dogma, and here's hoping that more Catholic schools will follow their lead.

Check out a KSFY report on the original story HERE.


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