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].

174 comments

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.

45 comments

Federal Judge Karen Schreier has ruled that purveyors of pious coercion and false science like the Alpha Center and Black Hills Crisis Pregnancy Center can intervene in Planned Parenthood's lawsuit against South Dakota's unconstitutional 72-hour waiting abortion period. Judge Schreier says the CPC's may intervene because they stand to lose 700 new clients a year if the law is overturned.

Now wait a minute: the Alpha Center's Leslee Unruh and her cronies are always hooting about how Planned Parenthood promotes abortion just in the interest of drawing clients and making money. But now Leslee and her fellow (uncertified) "counselors" elbow their way into the court by claiming their "right" to gain more clients from a state-sponsored registry?

Please, dear readers (and I'm sure you're up to this task), clarify for me this double standard.

33 comments

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