Today, in light of the Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the United States Court of Appeals for the Eighth Circuit affirmed Joshua Newville victory in Rosenbrahn v. Daugaard, a historic case challenging the constitutionality of South Dakota’s bans on marriage equality for same-sex couples.
On January 12, 2015, the United States District Court for the District of South Dakota entered judgment in favor of six same-sex couples represented by Newville, declaring:
SDCL 25-1-1, SDCL 25-1-38, Article 21 § 9 of the South Dakota Constitution, and any other provision of state law that precludes people from marrying or refuses to recognize an existing marriage, solely because the individuals are of the same gender are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES, 2015 WL 144567, at *11 (D.S.D. Jan. 12, 2015). The court further ordered that, “defendants are enjoined from enforcing those laws or otherwise declining to issue a marriage license solely because the applicants are of the same gender.” Id.
The court also ordered that, “the effects of [the] judgment will be stayed until the judgment is final.” Id. The State defendants appealed to the 8th Circuit. While the appeal was pending, the Supreme Court decided Obergefell v. Hodges, a decision that should have spelled immediate victory for the plaintiffs in the South Dakota case. Instead, the South Dakota Attorney General chose to continue being an impediment to equality, unnecessarily delaying the inevitable and continuing to drive up the costs of the litigation by making a motion at the 8th Circuit that sought to rewrite the history books, pretending as if South Dakota never violated the Constitution.
Today, the 8th Circuit rejected that argument, allowing the district court judgment invalidating South Dakota’s marriage bans to take permanent effect. This is important. The district court ordered,“defendants are enjoined from enforcing those laws or otherwise declining to issue a marriage license solely because the applicants are of the same gender.” 2015 WL 144567, at *11.
But on July 2, 2015, the Attorney General publicly stated that clerks may refuse to issue marriage licenses to same-sex couples for religious reasons. As the district court’s order makes clear, the Attorney General is wrong. Clerks who treat same-sex couples differently than different-sex couples—for any reason whatsoever—violate the Constitution. Any clerk who does so will face a lawsuit.
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Joshua Newville is a Minnesota employment lawyer, civil rights attorney, and mediator. Josh litigates and advises on such matters as wrongful termination, whistleblowers, discrimination, police misconduct, and more. He offers paid legal consultations and free online case reviews regarding employment law and civil rights.