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Federal challenge to South Dakota’s same-sex marriage ban filed

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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


  • 1. davep  |  May 22, 2014 at 5:04 pm

    off topic – I have learned so much about the state seals of the various states from this site. Nice one, South Dakota!

  • 2. ColleenJuniper  |  May 22, 2014 at 5:06 pm

    Me too! My favorite is Kentucky. 🙂

  • 3. Scottie Thomaston  |  May 22, 2014 at 5:06 pm

    That's what we're here for!


  • 4. SeattleRobin  |  May 22, 2014 at 8:58 pm

    Hehe, yeah. But it also just proves how boring my state's seal is. A picture of George Washington, big whoop.

  • 5. davep  |  May 22, 2014 at 9:08 pm

    Not as bad as Alabama. That one is just a picture of a map of the state.

    "Alabama – it's a state!"

  • 6. Dr. Z  |  May 22, 2014 at 9:25 pm

    I've always thought Oklahoma's was rather pretty, with its 46 gold stars on a navy background. And who knew there used to be bison in Indiana?

  • 7. Mike in Baltimore  |  May 23, 2014 at 2:10 pm

    There used to be bison in almost every state – Hawai'i would probably be the exception.

    Oh, and thank you for calling them bison, not the other name that is often used.

  • 8. Steve  |  May 23, 2014 at 2:22 pm

    That's really the best anyone can say about Alabama. Though I like "Alabama – At least we're not Mississippi"

  • 9. montezuma58  |  May 22, 2014 at 6:30 pm

    I've always wondered what the non-great seals of these states look like. I guess the ordinary seals just don't looks as good on official documents.

  • 10. Scottie Thomaston  |  May 22, 2014 at 6:38 pm

    I don't waste time uploading the Mediocre Seals. Too much work.

  • 11. Dr. Z  |  May 22, 2014 at 8:38 pm

  • 12. weaverbear  |  May 22, 2014 at 9:41 pm

    That's hilarious!

  • 13. SeattleRobin  |  May 22, 2014 at 9:09 pm

    Am I the only one wishing that any new cases filed would just drop the sex discrimination complaint? I assume it's done because it automatically gets a higher level of scrutiny, but it's just not flying as a legitimate complaint with the judges. And I think rightfully so. So continuing to bring it up just looks stupid to me, and adds complexity for no benefit.

  • 14. Dr. Z  |  May 22, 2014 at 9:29 pm

    Actually, during the oral arguments for Hollingsworth Kennedy suggested that he thought that line of reasoning might have merit. But maybe that's just because it would give him a way to apply heightened scrutiny without having to create a new suspect class, which he is clearly reluctant to do.

  • 15. maratreans  |  May 22, 2014 at 9:50 pm

    No matter that some judges don't like it, I think the argument makes logical sense. If saying "you cannot marry someone of a different race" is race discrimination, why would not equally "you cannot marry someone of the same gender" be sex discrimination? One is about prohibiting a difference, the other is about prohibiting the absence of a difference, but should that matter? And the responses from the other side parallel – opponents of gender marriage equality say "it is not gender discrimination, because everyone, both male and female, has the equal right to marry someone of the opposite gender"; opponents of racial marriage equality say "it is not racial discrimination, because everyone, both white and black, has the equal right to marry someone of the same race".

  • 16. Ragavendran  |  May 22, 2014 at 10:08 pm

    The arguments that courts make for why this is not gender discrimination is not because the law equally applies to both male and female genders. Because that argument, as you rightly point out, has been smacked down in Loving. The reason is that in claiming that there is gender discrimination, even if the law on the face appears to discriminate, you must be able to show how the law's purpose favors one gender over the other. (I forget the case law quote here that has been used by some judges, but there is one.) And you cannot do that here. Whereas with racial discrimination, the law was aimed at preserving white supremacy – a prejudice against blacks (and other races). Obviously, the marriage bans carry no such prejudice to favor one gender over the other.

    On a related note, I don't have high hopes for the McNosky case out of Texas because it involves two straight men suing the state solely on the grounds that Texas's marriage ban discriminates on the basis of gender.

  • 17. maratreans  |  May 23, 2014 at 4:38 am

    Imagine that a state introduced a ban on interracial marriage, and then argued that Loving did not apply, as the state did not have any purpose to favor one race over another. That would seem to be a very difficult thing for the state to prove, since the historical record is clear that has always been the purpose of these bans in the past. But supposing, hypothetically, that the state somehow managed to meet this burden, then these judges by their logic would be forced to conclude that this particular interracial marriage ban was not racial discrimination, since that particular purpose was lacking. Whereas I would argue, that this particular hypothetical interracial marriage ban is just as much a form of racial discrimination as those we are used to; and I think my conclusion makes more sense than theirs.

    Racial discrimination is discriminating on the basis of race; banning interracial marriage is discriminating against certain partnerships on the basis of the races of the partners, and thus discriminating on the basis of race. Yes, this is almost always in practice motivated by a desire by people of one race to subjugate those of another, but I don't think that motivation should be part of the definition, since hypothetical scenarios in which that motivation is lacking still appear to be racial discrimination.

    And, a feminist might argue that compulsory heterosexuality is one aspect of the patriarchial oppression of women, and that therefore the prohibition of same sex marriage is motivated, at least in part, by the desire to maintain male supremacy over women. This line of argument may meet their demand that "it is only sex discrimination if it is based on a desire to favor one gender over the other". (I realise this is an argument far too radical for most of the federal judiciary, though.)

  • 18. SeattleRobin  |  May 23, 2014 at 5:47 am

    In your hypothetical you left out what is at the heart of the Loving decision, which is that the right to marriage is fundamental, and the choice of partner rests with the individual. This should be the same reasoning applied to choosing a partner of the same gender.

    Sex discrimination has always been about inequality between the sexes, and trying to twist it into something else won't do anyone any good. There simply is no sex discrimination when it comes to this topic, so it's a disingenuous argument, one that just makes us look desperate. As several judges have rightly pointed out, this is clearly sexual orientation discrimination.

  • 19. SeattleRobin  |  May 23, 2014 at 6:05 am

    I thought I'd add before someone else does that I do believe that the source of a lot of the attitudes about gay people is in our traditionally patriarchal culture that has relied on clearly defined gender roles. The most visible gay people have always been individuals who refused those roles or maladapted to them. The two values most implicated are that women shouldn't forget their place, and men shouldn't lower themselves to be more womanlike.

    But I think these are topics best discussed by social scientists. I don't think it translates into a viable legal argument concerning who your marriage partner can be. Because again, there isn't any inequality between men and women in this. There is inequality between the majority of straight people and the minority of gay people.

  • 20. Ragavendran  |  May 23, 2014 at 7:17 am

    Yeah, I don't think ths argument is gonna fly in the courts.

  • 21. ebohlman  |  May 23, 2014 at 7:46 am

    In your hypothetical interracial marriage ban, there would still be differential impact: since whites greatly outnumber other racial groups in the US (remember that Hispanic/Latino isn't considered a racial group), such a ban would restrict a non-white person's choice of marriage partners to a far greater extent than a white person's and would have the practical effect of favoring whites. This doesn't work with gender because because the ratio of men to women is almost even; a law that removes 49% of potential partners from men and 51% from women is going to be looked at differently than one that removes 87% from blacks and only 13% from whites.

    I should point out, though, that while this argument could have been used in Loving, AFAIK it wasn't.

  • 22. Ragavendran  |  May 22, 2014 at 9:53 pm

    JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification? It's a difficult question that I've been trying to wrestle with it.

    I don't see why it's a difficult question. You simply can't trace it to a purpose that seeks to favor one gender over the other, as judges have pointed out in many of their opinions so far.

  • 23. StraightDave  |  May 22, 2014 at 10:08 pm

    The Loving case didn't favor one race over another, either. But it did use race as *the* determining factor in deciding what was illegal behavior. A slightly different point, yes, but just as bad. The existence of the classification, itself, was the underlying flaw in the law. It used race in relation to the other person's race, just as using your gender in relation to the other person's gender. Same deal.

  • 24. Ragavendran  |  May 22, 2014 at 10:15 pm

    From the Loving opinion:

    "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."

    So the Loving Court did find that the anti-miscegenation laws had an intent to favor the white race over all the other races. See also my response to maratreans above.

  • 25. Fr. Bill  |  May 23, 2014 at 6:37 am

    I hope many of you read the article in the NY Times yesterday or the day before about one of our GLBT brothers documenting the official US Government efforts to purge the civil service as well as the military of "homosexuals" – and this was in the 60s under Johnson. Prof. Chauncey of Yale has done a lot of good work in this area but it needs to be popularized – too many people are still unaware of this history of systematic abuse and discrimination. Perhaps Justice Kenedy's "reluctance" is based on fear of acknowledging his and his Court's complicity in this irrational injustice.

  • 26. Dr. Z  |  May 23, 2014 at 7:00 am

    Johnson's Sec'y of State Dean Rusk was no friend of ours, that's for sure. There's a clip of a press conference (I think it's in the documentary Before Stonewall) where Rusk makes a mocking reference to Frank Kameny leading a group of protesters in front of the State Department, and Rusk very offhandedly mentions that if the department identifies gay people they will be fired.

    One day kids will be shocked to learn that gay people not only could be legally fired, but the government and military actually leaned over backwards to do so. A few months ago I returned to homecoming at my alma mater, the University of Oklahoma, and was walking across campus with my niece who was an infant while I was attending. I led the fledgling gay students group in those days. I pointed out the building where we were attacked by frat thugs, and she was shocked. "Where have you been, girl?" was what I thought to myself. Things haven't exactly improved much in Oklahoma since then, but even now there's an unconscious effort underway to push antigay discrimination down the memory hole.

  • 27. Mike in Baltimore  |  May 23, 2014 at 2:18 pm

    So, based on your 'argument'; you would be OK with Missouri not allowing Michael Sam from marrying the person he loves, based on the sex of the couple, but you wouldn't be OK with Missouri not allowing them to marry because they are of different racial ancestry?

    Do I have that correct?

    To me (and probably others), that is an argument with no difference at all.

  • 28. montezuma58  |  May 23, 2014 at 4:54 am

    I think there's some reluctance on some of the judges part out of fear that ruling for marriage equality based on gender discrimination would lead to sexual orientation discrimination being considered equivelant to gender discrimination. Sure there are some differences between the concepts but I think they have much more in common than not.

    I think that claiming it's not gender discrimination just because all women or all men are not targeted is a cop out. It's a bit like saying men can only enter business partnerships with other men and women can only form business partnerships with other men then claiming that is not gender discrimination. To me claiming the permutations of the genders of those involved is legally relavent when there is no legal expectations or obligations for any party involved related to their gender is illogical.

    I think that lesson from Loving that gets ignored is that the effect on the individuals involved outweigh the effects (intentional or not) on broader classes of people. You can't restrict the actions of individuals based on an otherwise legally irrelevant attribute then claim it's hunky dory because it does not affect everyone (or possibly anyone) else that shares that attribute. It's still unjust discrimination whether it applies to two people or two million people. The main thing to take away from Loving is that targeting a subset of a group is just as invalid as targeting everyone in that group.

  • 29. Dr. Z  |  May 23, 2014 at 6:40 am

    Seems to me that if SCOTUS struck down the DOMA laws on the basis of gender discrimination that would be hugely helpful to the transgendered community, which could then apply that argument to combat many other forms of discrimination based on expectations of conformity to sex roles. (I can then imagine Scalia howling that SCOTUS will have destroyed any legal basis for making any sex-based distinctions, like separate bathrooms.)

    In the end, though, I think SCOTUS will follow the same logic that has been so successful in the lower courts, that due process and equal protection are adequate grounds for striking down the bans. They will probably reason that gender discrimination is a novel claim to make here, and who knows where it could lead. Stick with well established case law.

  • 30. montezuma58  |  May 23, 2014 at 7:36 am

    Fortunately there are several ways to attack the bans. I also think the SC will extend the Windsor logic to the state as all the lower courts have. I think it would be more difficult for them to make it a gender discrimination issue with the way the lower courts have tiptoed around the issue.

  • 31. F Young  |  May 23, 2014 at 8:10 am

    @Montezuma "Sure there are some differences between the concepts but I think they have much more in common than not."

    I agree. This was an alternate rationale of the UN Human Rights Committee in Toonen v. Australia and was the main basis of Young v. Australia, both under the International Covenant on Civil and Political Rights.

    Indeed, discrimination based on sex, gender identity and sexual orientation all involve penalization of non-traditional gender roles, such as women working in traditionally male jobs, people with a female assigned gender identifying, dressing and appearing like men, and men being sexually passive, having sex with other men and marrying other men instead of marrying women.

    I don't think there is anything wrong with this approach. It has the advantage of automatically calling for heightened scrutiny and allowing for sexual orientation discrimination claims to be made under the sex discrimination laws that already exist.

    "I think that claiming it's not gender discrimination just because all women or all men are not targeted is a cop out."

    I agree, but I don't think SCOTUS doeas, when it comes to pregnancy anyway.

  • 32. Eric  |  May 23, 2014 at 11:32 am

    In a non-marraige equality state, you go to the state and ask for a marriage license, the state asks you your gender, then tells you what you can or can't do on the basis of your gender alone. How is that not gender discrimination? The answer is directly predicated upon one's gender.

    What is the state's reasoning? The perpetuation gender stereotypes and what each gender is "supposed to do". The evidence for this is apparent any time someone confusedly asks a same-sex couple, "which one is the husband and which one is the wife? And, how do you decide who does what?"

    Sexual orientation discrimination is a subset of gender discrimination. Just as the courts have repeatedly found trans-discrimination to be a subset of gender discrimination.

  • 33. SeattleRobin  |  May 23, 2014 at 8:53 pm

    I still disagree. Gender discrimination would be if women were allowed to marry women, but men were prohibited from marrying men. (That's more icky, ya know.)

    You stated that what you are allowed to do is based on your gender alone. But that's not correct. They're basing it on the genders of both people involved, and it doesn't make any difference if you're both women or both men, the outcome is the same.

  • 34. Sagesse  |  May 24, 2014 at 4:19 am

    Change a few words, and your second paragraph is a perfect description of an interracial marriage.

  • 35. SeattleRobin  |  May 24, 2014 at 1:20 pm

    Except that there were clear racial inequalities and motivations in regards to the anti-miscegenation laws. I don't see anything in anti same-sex marriage laws that is designed to single out and treat one of the sexes unequally.

  • 36. Margo Schulter  |  May 22, 2014 at 10:17 pm

    From a feminist perspective, which Justice Ginsburg, for example, might appreciate, gender role discrimination is what’s going on with what the defenders of the bans call “man-woman marriage” as opposed to “genderless marriage.” However, the argument may need more development than it’s gotten in some of the briefs which raise it.

    There is the obvious analogy with Loving which Justice Holmes made in the Kitchen argument: if Virginia was discriminating by racial categories in its miscegenation law, how isn’t Utah (or South Dakota) discriminating by gender categories in its same-sex marriage ban?

    The argument on the other side then is, “But miscegenation was tied to the especially invidious history of racism, of slavery and Jim Crow, which isn’t present here.” However, the reply is: “But gender role discrimination is tied with everything from coverture to the kinds of laws about child custody, etc., that SCOTUS struck down in the 1970’s as it recognized that gender is a quasi-suspect category.”

    The defenders are sure ready to invoke, not only the flimsy “biological ability to procreate” justification easy to refute, but the “Moms and dads are not interchangeable” justification that gets right into the heart of the decisions on gender discrimination.

    The problem may be that it is the kind of argument not necessarily obvious to some very conscientious and open jurists, so it may need more development, maybe even some specialized amicus briefs focusing specifically on gender discrimination.

  • 37. Margo Schulter  |  May 22, 2014 at 10:27 pm

    Here’s an argument that using a gender classification, whatever the intention or not to favor either men or women, triggers intermediate scrutiny. Same Sex Marriage Bans and Sex Discrimination.

  • 38. DaveM  |  May 23, 2014 at 5:44 am

    I missed this earlier, but DeBoer v. Snyder is scheduled for August 6, 2014 at the Potter Stewart C.H. in Cincinnati. No word yet on the panel.

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  • 41. Pat  |  May 23, 2014 at 7:52 am

    I have a question about Illinois. On June 1st, marriage equality becomes legal statewide.
    I was wondering what is the current situation now, like how many counties are already issuing licenses to same-sex couples? I think grod was keeping a count of all counties, but I was wondering if there is ME pretty much everywhere in the state or if that only concerns a few counties.

  • 42. DaveM  |  May 23, 2014 at 8:07 am

    As of the end of April, there were 15: Champaign, Clinton, Cook, DeKalb, Greene, Grundy, Hardin, Jackson, Macon, McLean, Ogle, Perry, St. Clair, Wabash, and Woodford.

  • 43. ebohlman  |  May 23, 2014 at 8:18 am

    Those counties, while only 15% of Illinois's 102 counties, have 49% of the population.

  • 44. Mike in Baltimore  |  May 23, 2014 at 2:58 pm

    That's like saying the state of Indiana has more than 6.5 million population, but Marion County in Indiana (1 county of 92 in the state, or just over 1%) has more than 900,000 population (or approx. 15% of the state's population). The people of Allen County (with more than 363,000 population), Lake County (with approx 490,000 population), St. Joseph County (with almost 267,000 population), etc. benefit because the people of Marion County benefit. (Indiana is one of those states where the license must be obtained in the county where the marriage takes place.)

  • 45. Pat  |  May 23, 2014 at 3:11 pm

    DaveM and ebohlman, thanks!
    So since June 1st is a Sunday, are some county clerks planning to open on that day?

  • 46. StraightDave  |  May 24, 2014 at 6:31 am

    Since those were the counties that declined to "get with the program" when the legal path was made clear by the AG and other state officials, I doubt they'd go out of their way in a Sunday to make an unnatural effort. But who knows. I've lately come to conclude there's always one exception to every rule, or one oddball in every bunch – e.g., anal about the law but otherwise helpful and accommodating.

  • 47. Valorie  |  May 24, 2014 at 6:00 am

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    He is left undisturbed the remaining karmas will be more hospice than 15 minutes.
    The question is from Bodhana:

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    Equality On TrialFederal challenge to South Dakota’s same-sex marriage ban filed » Equality On Trial

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