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!

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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

Last Saturday was the 13th anniversary of my wife and I's engagement. We got married five months later, but from the moment I took the knee, we viewed our engagement as the point of no return. And we haven't returned. We married later, wiser, and forged a pretty stable relationship...

...just like lots of other people our age and younger who are getting married and staying that way. The New York Times reports that midst all the Sodom and Gomorrah, divorce rates have been declining since the early 1980s. Lots of stable marriages like ours throw spokes in the wheel of fundie arguments that delayed marriage is a problem, that folks waiting until their late twenties or early thirties are most likely to divorce, and even that religious commitment wards off divorce.

Conservative Christian culture correlates with a higher rate of failed marriages. But I'm not circulating petitions to ban marriages between eighteen-year-old fundamentalists in order to protect the institution of marriage. My marriage hasn't been shaken one micron by all those fundies breaking up any more than it has by all those homosexuals getting hitched. Experience tells me the key to driving that divorce rate further down is minding your own marriage.

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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

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.

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What will happen when the courts overturn South Dakota's ban on same-sex marriage? Look at Minnesota, where legislators beat the courts to the punch and made gay marriage legal last year, and you'll see the answer is, not much:

...something unexpected has happened in the year since the issue became one of the state’s most high-profile and hotly debated topics: Outside of a handful of districts across the state, gay marriage has quietly faded into the background this campaign season. Statewide GOP candidates for governor and the U.S. Senate are talking about the economy, not social issues. Even DFL incumbents in rural districts say the issue doesn’t come up as much as they thought it would.

“I don’t think the issue is totally dead, but people have seen the sky isn’t falling,” said DFL Rep. Tim Faust, whose Hinckley-area district, like Radinovich’s, voted in favor of the ban while he voted in favor of legalization. “Massive amounts of people have not gotten divorced; it hasn’t been the disaster that was predicted by the other side. Things are changing across the country... [Brianna Bierschbach, "Whatever Happened to the Gay-Marriage Backlash?" MinnPost, 2014.07.14].

Marty, don't work up too much of a sweat fighting Jennie and Nancy Rosenbrahn's lawsuit against the state. As Minnesota shows, defeating discrimination and letting homosexuals marry doesn't have much of a discernible downside.

237 comments

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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My Republican neighbors like to complain about "activist judges" and President Obama's executive orders.

But when it comes to gay rights, these conservative complainers should take a chill pill. By overturning gay-marriage bans and extending benefits to same-sex couples, judges and the President are saving Republicans' necks:

One Democrat makes a smart point to me this morning: In many ways, executive actions and the courts are saving Republicans from themselves on gay rights. A lot of the work is getting done without them having to lift a finger. They are increasingly going mute on the issue in the face of announcements such as the one promising executive action to end gay workplace discrimination [Greg Sargent, "Another Test for Republicans on Gay Rights," Washington Post: Plum Line, 2014.06.20].

Republicans deserve no plaudits for standing on the sidelines instead of actively obstructing civil rights, maybe just fewer rotten tomatoes. More praise goes to brave politicians like Independent Larry Pressler, who in the midst of running for Senate in blood-red South Dakota, filed an amicus curiae brief this week in Rosenbrahn v. Daugaard, the lawsuit seeking to overturn South Dakota's same-sex marriage ban:

Pressler Amicus Curiae Rosenbrahn v Daugaard 20140618 p1 Pressler Amicus Curiae Rosenbrahn v Daugaard 20140618 p2

Pressler expressed similar moral and practical sentiments prior to his candidacy. In April 2013, Pressler argued publicly that forbidding gay marriage could cause South Dakota to lose Ellsworth Air Force Base and other economic development opportunities. He consistently defended that position after he declared his Senate candidacy when he opposed the vile gay-discrimination SB 128 floated in the South Dakota Legislature in February 2014. And as we see above, Pressler says that civil marriage is a "fundamental right" and that conservatives ought to be all about protecting civil rights and the equal opportunity they provide for every citizen.

Democrat Rick Weiland has also vocally and fearlessly supported marriage equality throughout his campaign. Weiland and Pressler deserve credit for their active support of civil rights. Their Republican opponents deserve derision for at best ignoring civil rights while the judges and President they deem evil do the work of equality for them.

11 comments

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