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Judge Rejects Heart of State’s Defense of Gay Marriage Ban; Jackley Says “We Win!”

On Friday, U.S. Judge Karen Schreier rejected the bulk of the State of South Dakota's arguments for dismissing the challenge to its same-sex marriage ban. Judge Schreier's ruling says the two main cases on which the state leans to call for dismissal are not binding. The ruling says the six South Dakota couples suing have a "plausible equal protection claim" based on a fundamental right to marry and gender discrimination. The ruling says the defendants—our Governor, our Attorney General, the Secretary of Health, our Secretary of Public Safety, and the Brown County Register of Deeds—"have articulated no potential legitimate purpose" for South Dakota's discrimination against married homosexuals.

The ruling dismisses the plaintiffs' argument that South Dakota's same-sex marriage ban infringes on their right to travel. Judge Schreier says that a key component of the right to travel is that individuals who take up residence in a new state enjoy "the right to be treated like other citizens of that State." Judge Schreier says South Dakota's refusal to recognize same-sex marriages "appl[ies] equally to new citizens and existing citizens of South Dakota." That's tricky reading—our same-sex marriage ban still discriminates, according to everything before the judge so far, but since we're discriminating against all homosexuals and not just those durned furriners from Minnesota and California, the plaintiffs can't challenge the ban on right to travel.

The primary import of Judge Schreier's ruling is that the state loses its bid for dismissal, the case moves forward, and the state appears to have no good arguments on the flow.

Dealt a hard defeat, Attorney General Marty Jackley plays the kid who failed his spelling test, got in trouble for mouthing off at the teacher, but leads his answer to Mom's question about how school was today by telling her they got apple crisp for lunch. "Federal Court Grants in Part State’s Motion to Dismiss Same-Sex Marriage Case," he headlines his Friday press release. Yet not one media outlet in South Dakota has shared Jackley's assessment:

  1. "Late yesterday afternoon, Federal Judge Karen Schrier denied the state's motion to dismiss a lawsuit challenging South Dakota's ban on same-sex marriage."
  2. "Judge Rejects Motion to Dismiss SD Gay Marriage Case"
  3. "Judge Rejects Motion to Dismiss Gay Marriage Case"
  4. "Gay Marriage Case in SD to Proceed"

Come on, Marty: Judge Schreier ate your garlic bread but threw out your spaghetti and sauce. The plaintiffs can walk into court with the same arguments they've offered so far and win, while you have to boil up a whole new pot of noodles to throw against the wall to preserve the false right of the majority to discriminate against the minority.


  1. Nick Nemec 2014.11.17

    I would have thought the infringement on right to travel would have been based on a comparison between same sex couples and different sex couples rather than just between same sex couples.

    At any rate the state lost big and should just fold up and go home rather than double down on their losses and loose big. Double or nothing is a sucker bet.

  2. Tim 2014.11.17

    Nick, the conservative republican rulers of this state have been doubling down and losing millions of our money for years. My question is, who are really the suckers here, republican rulers or the people that keep electing them?

  3. caheidelberger Post author | 2014.11.17

    Nick, I'm a bit queasy with Judge Schreier's reasoning on the travel point as well. It feels like a reach for a technicality to hand to Marty as a consolation prize. Maybe the travel infringement is simply subsumed by the overarching due process/gender discrimination?

  4. mike from iowa 2014.11.17

    The dominos are falling neatly and in order. What does Jackley think is going to happen? The world ends soon? Someone will remove a few dominoes and stop the inevitable from Happening?

  5. jerry 2014.11.17

    I think that Marty Jackley is just not capable of doing anything with EB-5 because he is not qualified and moreover, will use this as his crutch to stay away from it because he is busy battling the gay cabal. As much as it hurts to say this, Chad, non attorney, shady character, Haber, was probably more qualified to do the attorney general job than this putz.

    Gay marriage is not Marty's first big failure. The ACA, Marty cost taxpayers a bundle so he could fly out to Washington and look important. Now, this ruling regarding gay marriage. Get ready for his next big move, he will fight it more as this way his name gets in the media and he has an excuse not have to deal with the EB-5.

  6. Nick Nemec 2014.11.17

    The right to travel portion of the ruling is akin to a court ruling, during the civil rights era, that separate but equal facilities are constitutional because we make both in-state and visiting out-of-state black people use them. No, separate but equal is unconstitutional because it treats citizens differently based on their race.

  7. Bill Fleming 2014.11.17

    I think the judge got it wrong. Married couples coming into the state lose a bundle of rights they have enjoyed elsewhere and so are not equivalent to residents here who have never had those tights protected.

    To say that the states treats those immigrating or visiting couples equally is false on its face. The state should not be in the business of diminishing people's human rights. If hasn't yet recognized and protected its own citizens' rights, that's one thing, but to refuse to recognize the rights of people who already have them, rights upheld by Federal Courts and the US Constitution is quite another.

  8. Bill Fleming 2014.11.17

    "...never had those RIGHTS protected." tights...sheesh... Sorry.

  9. 96Tears 2014.11.17

    So, Marty Jackley won the war to keep gays from traveling in South Dakota. Hmmm. Wonder what the squeaky wheels at Tourism think of that.

    I agree with Bill, Nick and Cory that you can't have it both ways on the equal protection issue. I think interstate travel was the heart of the case Marshall Thurgood used to shoot down prevailing laws that banned mixed race marriages in the '50s.

  10. Steve Sibson 2014.11.17

    Where in the Bill of Rights is this "right to travel"? I remember reading the 10th Amendment.

  11. larry kurtz 2014.11.17

    i remember reading the Ninth Amendment: the one that precedes the Tenth.

  12. mike from iowa 2014.11.17

    Them icky gays may have ebola. Maybe should be quarantined. Aids,afterall. is a province of Homersexuals and came from Africa.

  13. mike from iowa 2014.11.17

    Gen Robert E Lee's horse was named Traveller and was never adjudicated as Gay.

  14. Don Coyote 2014.11.17

    "Right to travel" is ensconced in the Privileges and Immunities Clause, Article IV, Section 2, Clause 1. It's been upheld repeatedly by SCOTUS in cases dating to the early 1800's. Article 4 of the Articles of Confederation, which reads like the Privileges and Immunities Clause, even specifically addressed the right. What the GLBT community is attempting to do is claim a privilege not offered to citizens of South Dakota because same sex marriage is not recognized.

  15. Nick Nemec 2014.11.17

    I'm a dirt farmer and not a constitutional scholar, but would the First Amendment also protect the right to travel? Specifically the right to peaceably assemble, restrictions on the right to travel would certainly also be restrictions on our right to peaceably assemble with whomever we wished to.

  16. Steve Sibson 2014.11.17

    So South Dakota's ban on same-sex marriage includes a ban on married gays from traveling down I-90, or anywhere in South Dakota?

  17. Nick Nemec 2014.11.17

    They can't travel to SD and still have the same rights marriage confers on any different sex couples traveling in the state have. For instance if they were involved in an auto accident and one of the couple was hospitalized the other spouse would not have authority to make medical decisions based on the fact they were married and by law next-of-kin. They would be considered "strangers" under SD law.

  18. Nick Nemec 2014.11.17

    At any rate the comparison of out-of-state married gay couples to the non-recognized in state gay couples misses the boat. The correct comparison is to married different sex couples either in-state or out-of-state.

    At any rate the ruling, on the whole, is a big defeat for the State of South Dakota. I'll take a 90% win every day of the week.

  19. Nick Nemec 2014.11.17

    I need to get in the habit of rereading my comments before hitting post.

  20. Bill Fleming 2014.11.17

    I agree Nick, the correct comparison is whether or not the rights of married couples are recognized equally from state to state, regardless of who the people are who are married.

  21. Nick Nemec 2014.11.17

    Exactly Bill, it's fundamentally a 14th Amendment question. States shall not deny any person equal protection under the law.

  22. Bill Fleming 2014.11.17

    Nemec and Fleming for co-President. I'll hold down the fort when Nick has to plant and harvest. :-)

  23. Nick Nemec 2014.11.17

    In the winter we'll gather up an arm load of poking sticks for liberal use during the rest of the year. Campaign slogan, "Ain't never been a fat old sow we couldn't make squeal with a generous liberal application of a poking stick."

  24. Steve Sibson 2014.11.17

    "Exactly Bill, it's fundamentally a 14th Amendment question. "

    Which destroyed the original Constitution including the first 12 Amendments. Specific to this discussion, the 10th Amendment.

  25. larry kurtz 2014.11.17

    Purchase of Alaska would not have happened without the 14th Amendment.

  26. Bill Fleming 2014.11.17

    Yes, Sibby, the Constitution's 14th Amendment says you can't have slaves, and that everyone's rights have to be protected equally, regardless of what you or your State's Constitution says. Don't like it? Too bad. Sux2BU.

  27. Nick Nemec 2014.11.17

    It's the law of the land Sibby. Don't like it, repeal it.

  28. Steve Sibson 2014.11.17

    "Constitution's 14th Amendment says you can't have slaves"

    It made us all slaves. And it is here to stay. And thanks for showing that it eliminated the First Amendment, as well as the 10th..

  29. larry kurtz 2014.11.17

    Being a slave in Mitchell must be really crushing: huh, Sibby?

  30. tara volesky 2014.11.17

    Sibby fights for us common folks in Mitchell. He really is for the underdogs, but some of the time Steve, I don't understand a word you are saying. Can you come down to my level a little more? Thanks.

  31. Don Coyote 2014.11.17

    Sorry Larry, but Madison is generally perceived as being the primary author of the Bill of Rights. He drew heavily from the Virginia Declaration of Rights which was primarily the work of George Mason. Jefferson was the Ambassador to France during both the Constitutional debates as well as the debates on the Bill of Rights in the 1st Congress which were ultimately passed at the end of Jefferson's tenure as ambassador. His influence was minimal in both debates.

    Also, you are conflating the liberalism of post-Revolutionary America with the social liberalism of FDR and LBJ. In fact today's Liberal is probably more in tune with Federalist thought of JKefferson's day since they desired a powerful centralized government.

  32. Don Coyote 2014.11.17

    "Jefferson's day" - excuse my sausage fingers.

  33. Steve Sibson 2014.11.17

    "Steve, I don't understand a word you are saying."

    Tara, it takes several years to deprogram the enslaved from years of indoctrination received from public education and the media.

  34. larry kurtz 2014.11.17

    coyotes run away after sending the dogs into song any time, day or night: they eat prickly pear fruit then shit on the road.

  35. Don Coyote 2014.11.17

    This coyote knows a steaming a heap of Bad History when he smells it. I hope Clay Jenkinson isn't pedalling this bs as well. He should know better.

  36. tara volesky 2014.11.17

    Thank you Steve. Keep fighting for the taxpayers and majority of Mitchell. The FAC and pool is not the will of the people, but they will try and slam it through one way or another.

  37. mike from iowa 2014.11.17

    The Scotus used the 14th amendment to deny Al Gore the right to be Potus in 2001.

  38. Roger Cornelius 2014.11.17

    Over half of our states now recognize gay marriage by either enacting their own legislation or having a court overrule their gay marriage ban. Some of the gay marriage bans by states are soon headed for the Supreme Court. We can only hope that Chief Justice John Roberts sides with the minority of the court to decide this issue. How can he not?
    South Dakota's minimal victory on the travel restrictions will likely be overruled by precedent when the court rules.
    Are there any other states where the courts upheld any travel restrictions?

  39. Bill Dithmer 2015.02.04

    I think everyone's missing the real point here. . Judge Schreier's ruling, while seeming to put the state on notice that their ban is less then legal, still leaves a nugget of subjectivity. That's all Marty is interested in right now, not because the issue means so much, but saying the right thing does.

    Jackley has been preordained to be the next governor of South Dakota. The posturing you see now is the beginning of what he sees as a right of passage to the mansion. As long as he does and says what is expected of him, he will be SDs next little Caesar. This wasn't the first time the AG had done this, and it wont be the last. Unfortunately rulings are never black and white but different shades of grey open to interpretation. Thats really all Marty needs

    He's not protecting the state from gays, he's guaranteeing that his name is the only one the GOP will consider for the job. Lets face it, you dont have to be smart to be the governor of South Dakota, you just need to do as your expected to do.

    The Blindman

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