Speaking of religion and bullying, House State Affairs showed a modicum of decency last week and killed House Bill 1220, certain conservatives' continued attempt to disguise anti-LGBT legislation in freedom of religion.

Eight committee Republicans joined two Democrats in deferring HB 1220 to the 41st day, leading right-wing blogger Bob Ellis to shout that Republicans hate religion. (At least South Dakota Republicans; Indiana Senate Republicans voted unanimously for a similar pro-discrimination bill last week.)

Ellis notes that Equality South Dakota did not testify against HB 1220. Curtis Price explains EqSD's absence from House State Affairs last week:

Equality South Dakota and many of our allies strongly opposed this bill, and, in coordination with others, encouraged our members to track it through our Facebook group.

Equality South Dakota did not testify on HB 1220 since the way it was written the bill did not directly address LGBT issues. It was felt if EqSD would testify, this would bring attention that this is a LGBT related bill and thereby hinder the possibility of killing it [Curtis Price, "HB 1220 Killed," Equality South Dakota blog, 2015.02.28].

I understand the tactical decision, though I cringe at the fact that LGBT is such a dirty acronym in South Dakota that an equal rights organization's best tactic on vile legislation is silence. Bob Ellis views EqSD's tactics as more of the nefarious gay agenda luring unsuspecting dupes into something like political rape:

The homosexual movement has learned that if it can get “useful idiots” in more mainstream organizations to do its dirty work for it, the odds of success for their agenda are much better than if people actually realize the investment of the homosexual agenda in the issue [Bob Ellis, "Religious Freedom Again Treated with Contempt by South Dakota ‘Republicans’," American Clarion, 2015.03.02].

The "useful idiots" in this case are the American Civil Liberties Union of South Dakota, the South Dakota Association of County Commissioners, the Board of Regents, and the Department of Corrections, all of whom testified that HB 1220 is not just unnecessary but harmful to basic governmental functions, not to mention civil rights.

I suppose I'm just another useful idiot who hasn't noticed the gay-agendeers pulling his strings, but as a member of the atheist minority in South Dakota, permit me to remind Bob that "decent, law-abiding God fearing people" are not under any "withering attack." Christianity is not about to disappear. Neither, alas, is Bob's hateful theology.


Equality South Dakota is thrilled about yesterday's ruling declaring South Dakota's same-sex-marriage ban unconstitutional:

Certain politicians in this state (including Attorney General Marty Jackley, who will continue to waste taxpayer's money fighting equality) still don't seem to get it. It's a good thing South Dakotans are fair minded, and will move for change when people are not treated equally. If our anti-marriage constitutional amendment were up for a vote again today, it would fail spectacularly. It's time to move forward. More change is on the way, but it won't happen unless fair-minded folks stand up [Curtis Price, press release, Equality South Dakota, 2015.01.12].

Equality South Dakota and other allies of LGBT equality and civil rights will be discussing the details of Judge Schreier's ruling at this weekend's Dakotas' Equality Summit, January 16–17, in Rapid City at the Holiday Inn Rushmore Plaza.

Equality South Dakota heads to Pierre on January 29 to make sure legislators don't get any wild ideas about trying to circumvent yesterday's ruling. January 29 is EqSD's Legislative Day. EqSD is offering bus rides from Sioux Falls and Rapid City to Pierre to bring friends of equality together to discuss legislation and lobby our leaders for equality. From 1 p.m. to 5 p.m., EqSD will host a discussion of legislation affecting South Dakota's LGBT community and training for citizens on lobbying. From 5:30 p.m. to 7:30 p.m., EqSD will host a reception for all legislators. Make sure your legislator attends!


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].


Toward the end of our conversation on KSOO's Viewpoint University yesterday, Dan Peters and Todd Epp asked me what big news stories we should watch for in 2015. You have my dreamy wishlist; now let me cast a partisan eye at my crystal ball and point toward some developing stories that offer smart Democrats some opportunities for organizing and recruiting allies this year for the 2016 election.

The Public Utilities Commission certification hearings on Keystone XL are arousing serious activism among cowboys and Indians. The state Democratic Party should be talking to those activists. Among the Indian opponents, the Democrats may find tribal leaders (and candidates?) who can help activate Indian volunteers and voters on other issues. Among the cowboy opponents, the Dems may find new, unexpected allies who are open to questioning their ingrained West River Republican assumptions and seeking common ground with Dems on other issues. I'm betting the pipeline issue will be resolved this year; Dems should strike now while that iron is hot to invite anti-pipeline activists to turn their energy to other important issues in 2016.

Another issue likely to get some resolution this year will be same-sex marriage. The record in other states and the failure of the Marty Jackley's arguments so far tell me Judge Karen Schreier will throw out South Dakota's gay marriage ban this year. LGBT activists and other lovers of equality and lifelong commitment will celebrate; then they'll want to turn their energy to other equality issues. LGBT activists are holding a summit this month; Democratic Party organizers should be at the summit listening for for ideas on what we can collaborate on in 2016.

South Dakota Democrats should build on one of their only visible areas of success, their ballot measures. Dems in 2014 won the biggest raise in the nation for minimum wage workers, which by itself is a great feather in the cap. We now need to keep tickling Republicans with that feather. We should monitor wage and employment data over the coming year, and when we see economic stimulus from workers with more wages and, as in Minnesota, no sign that increasing the minimum wage hurts job growth, we should loudly and unabashedly remind voters that we were right and the Republican corporate overlords were wrong.

Democrats need to build on that policy momentum, pick another issue (or two?), and get it on the ballot by the November 8, 2015 deadline. They need to march petitions all summer, not just to get a measure on the ballot, but to recruit and mobilize volunteers. They also ned to prepare a full-tilt marketing campaign behind a killer issue on which the party and its candidates can boldly hang their brand.

Democrats won't be alone on the petition trail this year. Rep. Rev. Steve Hickey and Steve Hildebrand have announced their intention to place a payday-lender-killing interest rate cap on the ballot. Daugaardian logic would say, "Don't crowd the ballot; too many issues make voters tired and stupid." But we're not Daugaard; we're Democrats! The more opportunities for people to practice democracy, the more boxes they can mark on a ballot, the better. Dems should think about issues that can synergize with the interest rate cap, and they should keep their radar on for other groups who might be working on initiatives, just in case we need to avoid duplication or cross-purposes, but they should not be afraid to forge their path with the policy initiative they think best serves the interest of the state and the party.

Along with possible issue synergy, the interest rate cap initiative may offer South Dakota Democrats a valuable lesson in coalition-building. Hickey and Hildebrand have already made national headlines with their unlikely political union. Hickey is an evangelical pastor and Republican legislator. Hildebrand helped Barack Obama become President. By any twist of conventional wisdom, a Hickey-Hildebrand collaboration should as unlikely as Stace Nelson and Cory Heidelberger running as a gubernatorial ticket in 2018. But there they are, Steve and Steve, putting aside political opposition to forge a working relationship and solve problems.

Any candidate for SDDP exec who cannot recognize, verbalize, and actualize the lesson in that paragraph should be summarily booted from the interview.

These suggestions apply as much to the state Democratic Party as it does to South Dakota Progress, the new group forming to recruit and support local Democratic candidates. SDP and SDDP (yes, this will be confusing) both need to find new workers, new candidates, new allies, and new dollars. Both groups can find useful conversations and lessons in all of the areas of activism mentioned above. And heck, if SD Progress can grow from mid-term frustration and one good idea into an effective organization, they may offer the South Dakota Democratic Party some lessons as well.


Yesterday I mentioned that a few groups are brewing up ideas to help the Democratic Party regain its footing in South Dakota. Among the party-building ideas I haven't mentioned yet is to take advantage of the energy of existing groups with a natural (if unstated for 501(c)3 purposes) affinity for the Demcoratic platform.

Among such logical sources of strength are the Black Hills Center for Equality and its allies, who are hosting the first annual Dakotas Equality Summit January 16–17 in Rapid City:

The Black Hills Center for Equality (BHCFE), in partnership with numerous equality groups in South Dakota, is hosting the first annual Dakotas Equality Summit on the 16th and 17th of January at the Holiday Inn Rushmore Plaza in Rapid City, South Dakota. According to the BHCFE, the objective of this conference is to create an opportunity for LGBT individuals, families, and allies, as well as any interested person, to come together for fellowship, learning and growing in their everyday lives.

A social will begin at 6:00 pm MST, on Friday, January 16th with music and appetizers. On Saturday, January 17th beginning 9:00 am, David Patton, BHCFE Board President, will kick off the summit followed by breakout sessions focusing on building support systems, understanding stress, workplace and life protections, campaign involvement and many more. That evening our keynote speaker, Judy Shepard will take the stage to share her inspirational story of how the tragic loss of her son lead her to begin advocacy.

The registration fee to participate is $40 through December 31, 2014 and will increase to $50 on January 1, 2015. Registration includes admission to the pre-event social on Friday, with complimentary appetizers and music, breakfast, lunch and dinner on Saturday, as well as daycare during the breakout sessions, admission to the keynote speaker, and the after-event celebration Saturday evening. A limited number of volunteer participants can register paying only $15 [Black Hills Center for Equality, press release, 2014.11.11].

The Dakotas Equality Summit is not and should not be a partisan affair. Every South Dakotan interested in defending liberty and equality has a stake in the topics that summit participants will discuss.

But this event will also provide Democratic reformers a valuable opportunity to network with potential allies in the fight for equality right on the doorstep of homophobic Senator Phil Jensen's legislative district. (Check out the map: Rushmore Plaza sits right at the border of the chunk of North Rapid gerrymandered into District 33.) Mark the calendar, Dems, and go make useful friends!

* * *

Mike Rounds and John Thune holding hands, Banner image, SDGOP spin blog Dakota War College, snapped 2014.11.12

Banner image, SDGOP spin blog Dakota War College, snapped 2014.11.12

But forgive me if I try to make LGBT equality sound like a purely partisan issue. After all, even the most rabid Republican spinsters agree that two men ought to be able to hold hands in front of an American flag and be recognized as real and equal South Dakotans.


Judge Karen Schreier is taking some time to compose her ruling on South Dakota's same-sex marriage ban.

While we wait for Judge Schreier to overturn the narrow 2006 majority who wrote that discrimination into our state constitution, how about a movie? The SDSU Gay Straight Alliance and the SDSU Office of Diversity, Equity, and Community are sponsoring a Brookings showing of The Case Against 8, a documentary about the fight against California's same-sex marriage ban.

After the movie, Nancy and Jennie Rosenbrahn, the happily married ladies leading the court challenge to South Dakota's ban on their legal relationship, will participate in a discussion of the film and their efforts for equality, along with two Sioux Falls couples participating in the lawsuit.

The Case Against 8 plays Tuesday, October 21, at 6:30 p.m. as part of the Common Good Film series at the Brookings Public Library, Brookings, South Dakota.


The Equality South Dakota PAC has announced its candidate endorsements for 2014. Our three marquee Democrats—Rick Weiland, Corinna Robinson, and Susan Wismer—all get the nod, although they mention that Larry Pressler also backs legalizing same-sex marriage.

The Equality South Dakota PAC also gives official love to these Legislative candidates:

Our gal Robin gets special mention for taking on homo-xeno-trutho-phobic Phil Jensen:

Equality South Dakota urges you to support Robin. She has publicly spoken out against her opponent, incumbent State Sen Phil Jensen. Jensen introduced the controversial SB 128 this past session. SB 128 (which was rightfully killed) would have allowed businesses to legally discriminate against LBGT based upon the business owner’s religious beliefs. Robin Page voiced her support for LGBT equality at this year’s Black Hills Pride Festival and her platform strongly supports the LGBT community. She is directly campaigning against her opponent's support of SB128 (Page Running As Anti-Jensen, Rapid City Journal, Sept 29) [Equality South Dakota PAC, candidate endorsement, October 2014].

My only problem with EqSD-PAC's endorsements is that more candidates haven't earned them. Listen to the kids, kids: equality and civil rights for all citizens are the way all candidates should go. If you're not on EqSD's list of candidates fighting for justice, you should be.

Related: Steven C. Hildebrand reminds friends on Facebook that the lawsuit that could overturn South Dakota's same-sex-marriage ban gets a hearing on Friday:

Sioux Falls Area Friends - There will be a hearing in front of Federal Judge Karen Schreier as to the constitutionality of South Dakota's ban on same-sex marriages this Friday, Oct. 17 at 9 am Central time. The hearing is open to the public and will be held in the Federal Courthouse on Phillips Avenue in downtown Sioux Falls, Courtroom #2.

I would encourage any of you who are available to join us at the Courthouse on Friday. It would be a great way to show strong support for over-turning the ban [Steven C. Hildebrand, Facebook post, 2014.10.14].

Popcorn is not allowed in the courtroom, but curious and civic-minded citizens are!


Sweet 16: Colorado joins the list of states whose same-sex marriage bans have fallen before judicial scrutiny. District Court Judge C. Scott Crabtree agreed with nine couples from Denver and Adams counties that Colorado's same-sex marriage ban violates the Constitution. Judge Crabtree stayed his own ruling, acknowledging that the state will appeal and that the final word will have to come from the state or federal Supreme Court.

In his ruling [C. Scott Crabtree, Brinkman, Burd, et al. v. Long and Colorado, 2014.07.09; links added], Judge Crabtree says Colorado's denial of the fundamental right of marriage to a minority of its citizens "bears no rational relationship to any conceivable government interest":

Like DOMA, the expressed purpose of the amendment is to discriminate against an unpopular minority by denying members of the minority access to a right which the United States Supreme Court has repeatedly said is “fundamental.” Under any reading of Romer v. Evans, 517 U.S. 620 (1996) and Windsor, these laws cannot stand constitutional scrutiny and must be stricken [Crabtree, p. 10].

Colorado argued that "[T]he exclusive capacity and tendency of heterosexual intercourse to produce children, and the State’s need to ensure that those children are cared for, provides that rational basis" a state interest in discriminating against non-heterosexual couples seeking marriage licenses.

Such an argument ignores that many heterosexual couples who marry without the intent or ability to naturally procreate children are nonetheless allowed to marry. This “responsible procreation” justification has been raised by many other states in defending their similar bans on same gender marriages and has failed in every case. Colorado law is devoid of any proscription on parenting by same gender couples and the Uniform Parentage Act, C.R.S. §19- 4-101, expressly allows for two parents of the same gender. The State allows same gender couples to adopt children, to beget or give birth to children through artificial means or surrogacy and to retain custody after a failed heterosexual marriage [Crabtree, p. 11].

...There can be no doubt that same-sex couples are equally equipped to raise healthy, happy children as opposite-sex couples [p. 14].

Colorado argues that banning same-sex marriage "encourage potentially procreative couples to raise children produced by their sexual union together."

There is no logical reason to believe extending the marriage right to all couples would have this effect. As the Kitchen court explained, “It defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts.” Kitchen v. Herbert, 961 F.Supp.2d 1181, 1211 (D. Utah 2013) [Crabtree, p. 15].

In other words, heterosexuals are going to get it on and have babies regardless of whether the state discriminates against homosexuals.

While the state says it wants to promote child-rearing by committed couples, Judge Crabtree finds that denigrating committed same-sex couples only makes committed child-rearing harder:

The Marriage Ban exacerbates the very problem the State purportedly seeks to solve by insisting that the children of same-sex couples continue to be denied the stability and dignity of their parents’ marriage. Further, the State’s asserted interest is belied by its own laws. No state, including Colorado, restricts marriage to the procreative and the fertile [Crabtree, p. 24].

Coloradans amended their constitution in 2006 to state that "Only a union of one man and one woman shall be valid or recognized as a marriage in this state." South Dakotans added a nearly identical amendment the same year: "Only marriage between a man and a woman shall be valid or recognized in South Dakota. South Dakota's same-sex-marriage ban goes further, refusing to recognize civil unions, domestic partnerships, or other "quasi-marital" relationships. Colorado law allows civil unions.

But Colorado's milder discrimination is still discrimination:

The fact that the State has created two classes of legally recognized relationships, marriages and civil unions, is compelling evidence they are not the same. If civil unions were truly the same as marriages, they would be called marriages and not civil unions. If they were the same, there would be no need for both of them [Crabtree, p. 11].

...Civil unions are a separate, second-class institution which does not confer the same benefits and protections as marriage. “The history of our nation has demonstrated that separate is seldom, if ever, equal.” Opinions of the Justices to the Senate, 802 N.E.2d 565, 569 (Mass. 2004) [p. 16].

...“The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.” In re Opinions of the Justices to the Senate, 802 N.E.2d at 570. The fact is that those in a civil union do not and cannot obtain the same benefits and protections of federal law as married couples including filing joint tax returns, Family Medical Leave Act benefits, and facing loss of social security and veterans benefits. If civil unions were somehow the equivalent of marriage, there would be no real need for this second tier relationship. The State paid only lip-service to the plaintiffs’ arguments that civil unions were not unlike the “separate but equal” black and white educational systems [p. 41].

Judge Crabtree cites a whole bucket of precedents to add Colorado to the list of sixteen states that have failed to make the argument that South Dakota Attorney General Marty Jackley must gamely make in the Rosenbrahn case that will overturn South Dakota's same-sex marriage ban. AG Jackley will have nothing new to say in defense of South Dakota's decision that hasn't already been said and rejected in sixteen other states. Accordingly, the judge hearing Rosenbrahn v. Daugaard will likely may just crib Crabtree and the other judges who have overturned same-sex marriage bans less constitutionally offensive than South Dakota's.


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