Federal Judge Karen Schreier has ruled South Dakota's gay marriage ban unconstitutional. In a ruling issued today, Judge Schreier finds in favor of Jennie and Nancy Rosenbrahn and five other South Dakota same-sex couples who sued the state for legal recognition of their marriages.
Don't throw all your rice yet: in her brief order, Judge Schreier stays her order pending appeal, "[b]ecause this case presents substantial and novel legal questions, and because there is a substantial public interest in uniformity and stability of the law...."
Stay tuned—I'm reading and seeking details!
Update 15:10 CST: I'm reading the ruling now. Apparently Attorney General Marty Jackley threw a lot of spaghetti at the wall, and none of it stuck. Among the noodles was an argument that the federal court has no jurisdiction over domestic relations. The state cited a ruling that found federal courts cannot issue divorce, alimony, or child custody decrees. Judge Schreier said that's irrelevant: Rosenbrahn et al. are asking the court to rule on a Constitutional question, not issue a divorce, order alimony, or decide child custody [See Schreier ruling, pp. 7–8].
15:13: The AG's office went Sibby and tried to turn the Tenth Amendment into an absolute ban on federal rulings on marriage issues. Judge Schreier said no, state laws on marriage are still subject to the rest of the Constitution [p. 9].
15:20: Citing Loving v. Virginia (1967), Judge Schreier says on page 10, "Marriage is a fundamental right." Permit me to emphasize the period. Judge Schreier rejects the state's argument that this fundamental right continges upon "the categorization of the individual attempting to exercise that right" [p. 12]. Her Honor finds that the preponderance of Supreme Court rulings on marriage "demonstrate that the right to marriage is not broken down into sub-rights depending on the individual attempting to exercise that right" [p. 13].
15:27: Oh, this paragraph's a beauty:
The right to marriage is related to other constitutionally protected rights, such as the right to privacy. See Zablocki, 434 U.S. at 384 (citing Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). Personal choices about marriage and other intimate decisions are “central to personal dignity and autonomy” protected by the Fourteenth Amendment. Planned Parenthood of Se. Pa., 505 U.S. at 851. The right to marriage also encompasses an associational right “ ‘of basic importance in our society’ [which is] sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971)). The right to make individual moral and sexual choices, particularly with respect to sexual orientation, also enjoys constitutional protection. See Windsor, 133 S. Ct. at 2694 (citing Lawrence, 539 U.S. 558). The fact that marriage is intertwined with other fundamental constitutional rights is consistent with the broad interpretation the Supreme Court has given to the right to marriage [Judge Karen Schreier, ruling in Rosenbrahn et al. v. Daugaard et al., 2015.01.12, p. 13].
Your choice to get married (or not!) is fundamental to your dignity and autonomy. The 14th Amendment says the state doesn't get to mess with your dignity and autonomy.
That point and the above point about marriage as a fundamental right are important, because Judge Schreier uses them to dismiss the state's public policy argument that the court should leave this issue in the realm of public debate. She cites Supreme Court Robert H. Jackson in his famous pronouncement on the purpose of the Bill of Rights:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections [Justice Robert H. Jackson, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 1943].
In other words, 51.83% of us don't get to go to the polls and deny a minority a fundamental Constitutional right, be it speech, assembly, due process, or marriage.
15:43: Judge Schreier also dismisses the state's "tradition" defense, saying tradition does not insulate law from constitutional challenge. She footnotes this warning about letting tradition set your definitions:
If traditional definitions of marriage were unassailable, marriage would look much different than it does today. “[W]ithin the past century, married women had no right to own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands” [Schreier, p. 17, citing Kitchen v. Herbert (2014)].
15:48: And for those of you shouting, "Dogs and cats living together!" stop. Judge Schreier says her ruling is no slide down the slope to polygamy, incest, and other nasties. Judge Schreier says the court has legalized interracial marriage and same-sex intimate conduct while letting stand prohibitions on polygamy and incest [pp. 19–20].
16:31: South Dakota contended the state has a compelling interest in "channeling procreation into marriage" and "proceeding with caution." The state failed to demonstrate to Judge Schreier how banning same-sex marriage serves either interest.
On procreation, the state failed to explain why it would ban same-sex marriages but not opposite-sex marriage between people who either cannot or do not have kids. Nor did the state prove that children are worse off with two moms or two dads instead of a mom and a dad [pp. 22–23].
On "caution," the state claimed to be worried that allowing same-sex marriage would 'fundamentally alter a basic societal structure" and hit the state budget by giving a whole new group of people state marriage benefits. That caution argument implies that the state is taking a wait-and-see attitude. Judge Schreier dismissed that argument, saying the state offered no reason that its "caution" ought to require citizens to wait for fundamental Constitutional rights. Judge Schreier also said the same-sex marriage ban was written as a Constitutional amendment, not a temporary statute with a sunset clause, indicating the state was not interested in "proceeding" with or without caution.
16:48: Attorney General Marty Jackley issues a muted press release stating that “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." The AG offers no new or original commentary on the ruling itself and only recycles the odd historical line he has included in past releases noting that our same-sex-marriage ban affirms a Dakota Territory law... which I think Judge Schreier would say is also unconstitutional.
18:16: The South Dakota Democratic Party gives a darn. SDDP chair Ann Tornberg issues this statement:
"The moral arc of the universe is long but it tends towards justice." How true Martin Luther King Jr's words ring true today. Because the SD Attorney General's motion to dismiss was rejected by the US District Court, we are now able to move forward and proceed with a ruling on the case itself. Discrimination has no place in South Dakota law. As we celebrate this success today, the South Dakota Democratic Party reaffirms its commitment to extend equal rights and protections for all South Dakotans [Ann Tornberg, SDDP press release, 2015.01.12].