May 22, 2014
Six same-sex couples in South Dakota are challenging the state’s ban on same-sex marriage. Filed by attorneys based in Minnesota and South Dakota, the suit alleges that the state’s refusal to marry same-sex couples or recognize their out of state marriages violates the Due Process and Equal Protection Clauses of the federal Constitution.
The Washington Blade has more on the plaintiffs.
The complaint urges the district court to apply heightened scrutiny to the Equal Protection claims. They claim violations of Equal Protection based on sex, which already receives heightened scrutiny, but also based on sexual orientation:
The exclusion of Plaintiffs from marriage based on their sexual orientation subjects Defendants’ conduct to strict or at least heightened scrutiny. Defendants’ conduct cannot withstand this scrutiny because the exclusion does not serve any legitimate governmental interests, let alone any important or compelling interests, and does not serve any interests in an adequately tailored manner.
The filing also argues that, since there’s a fundamental right to marriage, strict scrutiny applies to their Due Process claims. This requires the government to have a compelling reason to prevent the plaintiffs from marrying:
Defendants cannot satisfy the Due Process Clause’s decree that governmental interference with a fundamental right or liberty interest may be sustained only upon a showing that the burden is narrowly tailored to serve a compelling or important governmental interest, because the marriage bans are not even tailored to any legitimate interest.
The case was filed in federal district court in South Dakota, which falls within the jurisdiction of the Eighth Circuit Court of Appeals. There are two other federal lawsuits within their jurisdiction: a challenge filed by the ACLU on behalf of couples in Missouri seeks recognition of their out of state marriages, while another seeks both recognition and the ability to marry in Arkansas.
Notably, the Eighth Circuit is the only appeals court with existing precedent on same-sex marriage. In 2006, they decided Citizens for Equal Protection v. Bruning, ruling against the groups who challenged Nebraska’s ban. The ruling came before all of the current challenges and rulings in favor of same-sex couples, and before the Supreme Court decided United States v. Windsor, so it may not be given as much weight in these challenges.
With the filing of this lawsuit, North Dakota is the only state not facing a challenge to its ban.
You can read the complaint in the new case here.
Thanks to Kathleen Perrin for these filings