South Dakota Hub

8th Circuit Defers Arguments on Marriage Cases from SD, AR, MO, and NE Pending SCOTUS Decision

The 8th Circuit Court of Appeals says it is deferring arguments on four same-sex marriage cases until SCOTUS rules, KDLT reports:

NewvilleThe court announced Wednesday that it's holding off on "any further consideration" of the cases from South Dakota, Arkansas, Missouri and Nebraska. Arguments were scheduled to begin on May 12 in Omaha, Nebraska.

Employment and Civil Rights Attorney Joshua Newville, who is representing clients from South Dakota is pissed that the court held off this decision for so long.

Wrote Newville in a press release:

We have just been informed that the 8th Circuit Court of Appeals is canceling the marriage equality arguments scheduled for May 12 in light of yesterday's arguments at the Supreme Court. Given that the 8th Circuit knew all along that the Supreme Court arguments were scheduled for yesterday, we're not certain why the Court has proceeded in the manner that it has. Many of my clients, as well as their family, friends, and supporters, spent money on hotels, flights, etc. I also put many hours into preparing for the argument after the Court denied multiple motions to stay the proceedings pending the Supreme Court arguments.

Newville adds:

This process has been a painful one for my clients, and the Court's action today adds to the roller-coaster they've been forced to endure. Despite a South Dakota district court victory nearly five months ago, families across the state still suffer daily harm and humiliation as they are denied basic equal rights and dignity. Despite winning their case and showing that they were deprived a basic fundamental right, they've had that victory put on hold -- the courts effectively telling them that their rights take a back seat to a very lengthy and convoluted appeals process.

When the Supreme Court denied Alabama's request to stay the district court judgment pending appeal, it did so after it granted review to the 6th Circuit cases heard yesterday. In doing so, the Supreme Court made clear that same-sex couples and their children should not have to wait another day to be treated with basic dignity and respect. Thus, while I am optimistic about the outcome of yesterday's arguments at the Supreme Court, I am beyond troubled by the fact that loving and committed couples in South Dakota and North Dakota are denied equality while similarly situated couples in states like Florida and Alabama have marriage equality pending appeals in those states.

Similarly, my clients in North Dakota had their case fully briefed and presented to the district court there in early September 2014. For over four months, that court did nothing with the case. Then, in January, the Supreme Court granted review in the 6th Circuit cases and the district court in North Dakota put the case on hold.

Gay Couples In Missouri, South Dakota Ask Judges To Allow Same-Sex Marriages Immediately


In the wake of the U.S. Supreme Court's refusal to halt same-sex marriages in Alabama, gay couples in two other states are asking federal judges to allow them tie the knot immediately.

Attorneys for same-sex couples in Missouri and South Dakota filed motions this week asking federal courts to lift stays on decisions striking down same-sex marriage bans. 

Both motions note that the U.S. Supreme Court has repeatedly denied motions to stay lower court decisions striking down marriage bans, most recently in Alabama. 

From the South Dakota motion: 

"Here, while the Defendants have not shown that South Dakota would suffer any harm in the absence of a stay, the challenged laws are continuing to cause serious and irreparable harm to Plaintiffs and other same-sex couples and their children every day that the bans remain in effect. In addition, the stay on judgment is causing continued insecurity, vulnerability, and stigma. The purpose of marriage is, in large part, to provide security and protection in the face of anticipated and unanticipated hardships and crises—e.g., in the face of death, aging, illness, accidents, incapacity, and the vicissitudes of life. Indeed, Plaintiffs in the case have dealt with such issues during the pendency of this litigation. This harm is not speculative, but immediate and real."

The South Dakota motion was filed in the same federal district court where Judge Karen Schreier struck down the state's marriage ban last month. 

The Missouri motion was filed in the 8th U.S. Circuit Court of Appeals, which is considering the state's appeal of a decision striking down the marriage ban. The 8th Circuit agreed to expedite the appeal last month but declined to lift the stay. Same-sex couples can already marry in St. Louis thanks to a state circuit judge's ruling striking down the marriage ban. 

Elsewhere, the 4th Circuit placed on hold appeals of a federal district judge's decision striking down North Carolina's marriage ban, pending the U.S. Supreme Court's consideration of marriage cases from four other states

Read the Missouri and South Dakota motions, AFTER THE JUMP ... 

Continue reading "Gay Couples In Missouri, South Dakota Ask Judges To Allow Same-Sex Marriages Immediately" »

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


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.


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.


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:


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


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."


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