SIOUX FALLS, S.D. (AP) – A federal judge on Monday declared South Dakota’s same-sex marriage ban unconstitutional, but marriage licenses won’t be immediately issued because the ruling was put on hold pending a potential appeal.
U.S. District Judge Karen Schreier sided in favor of the six couples who filed the lawsuit in May in Sioux Falls. The lawsuit challenges a 1996 state law and a voter-approved 2006 constitutional amendment that ban gay marriage.
“Plaintiffs have a fundamental right to marry,” Schreier wrote. “South Dakota law deprives them of that right solely because they are same-sex couples and without sufficient justification.”
Attorney General Marty Jackley on Monday said the state will appeal the case to the 8th U.S. Circuit Court of Appeals, a conservative-leaning federal appeals court that in 2006 affirmed Nebraska’s right to ban same-sex marriages.
“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,” Jackley said.
He said he’s obligated by law to defend both the state constitution and state statutes.
Two other states – Arkansas and Missouri – have appealed similar federal district court rulings to the 8th Circuit. The U.S. Supreme Court again is considering whether to hear a gay marriage case, and a ruling from another appeals court could increase the likelihood the justices will do so.
In November, the federal court of appeals based in Cincinnati became the first, and so far only, appellate court to uphold state bans on same-sex marriage. Plaintiffs from Kentucky, Michigan, Ohio and Tennessee are asking the court to reverse that decision.
Presently, 36 states allow same-sex couples to marry, nearly twice as many as just three months ago.
The South Dakota couples’ attorney, Josh Newville, said this represents the last opportunity for the state’s “elected officials to be on the right side of history” by not appealing Schreier’s decision.
“I would say that Attorney General Jackley needs to consider very seriously the amount of money that he’s pouring into this lawsuit on behalf of the state to keep a discriminatory law in place,” Newville said.
Five of the couples already married in Iowa, Connecticut and Minnesota. Nancy Rosenbrahn, of Rapid City, married her longtime partner in April in Minneapolis.
“On one hand, this is like the best present ever,” Rosenbrahn said of the decision Monday. “On the other hand, you go back and you say ‘Well, yeah, it should be a yes’ because we are no different than anybody else. There is no reason to say we can’t get married, there is no valid reason to do that anymore.”