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  • Writer's pictureJosh Newville

May 2014: Joshua Newville Files Historic Lawsuit Challenging South Dakota Marriage Equality Ban

On May 22, 2014, on behalf of twelve South Dakota residents, Attorney Joshua Newville filed a federal lawsuit in United States District Court in Sioux Falls, South Dakota. The lawsuit challenges the constitutionality of South Dakota’s statutory and constitutional bans on marriage equality. 

The lawsuit was filed on behalf of Plaintiffs Jennie and Nancy Rosenbrahn, Jeremy Coller and Clay Schweitzer, Lynn and Monica Serling-Swank, Krystal Cosby and Kaitlynn Hoerner, Barbara and Ashley Wright, and Greg Kniffen and Mark Church. Defendants include Governor Dennis Daugaard, Attorney General Marty Jackley, Secretary of Health Doneen Hollingsworth, Secretary of Public Safety Trevor Jones, Pennington County Register of Deeds Donna Mayer, and Brown County Register of Deeds Carol Sherman. United States District Court Judge Karen Schreier is overseeing the matter in the Southern Division of the District of South Dakota. The Court file number is 14-4081.  The allegations contained in the Complaint are below:


During the infancy of the United States, John Adams, James Madison, Alexis de Tocqueville, and others, warned of “tyranny of the majority.” Concerned that a direct democracy would allow a simple majority to stampede the rights and dignity of minorities, our nation’s founders created a constitutional representative democracy, establishing a system of government with several super-majoritarian checks on simple majorities and myriad institutional checks and balances pursuant and subordinate to the Constitution.

In 1898, South Dakota became the first State in the nation to allow a simple majority of its voting-eligible citizens[1] to initiate and enact constitutional amendments.  Since that time, and particularly in the last half century, our country has seen an explosion in the use of such statewide popular votes to circumvent the traditional legislative process and to override the judiciary — often in a manner that tramples on the dignity and equality of minorities.

In 1992, a 53% majority of Colorado voters approved a ballot measure that added Amendment 2 to the Colorado Constitution. The amendment prohibited every county, city, and town within Colorado from protecting gay and lesbian individuals from discrimination. In 1996, the United States Supreme Court reviewed the amendment in Romer v. Evans, 517 U.S. 620 (1996). In the Court’s opinion, Justice Kennedy wrote, “laws of the kind… raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,” and concluded that the ballot measure was born of a “bare… desire to harm a politically unpopular group.” Id. at 634. The Court added, “[i]f the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare… desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. (emphasis in original) (internal citations omitted).

With the adoption of the Fourteenth Amendment in 1868, our Constitution provided not only a more expansive definition of citizenship, but also the framework for assuring our Founders’ “self-evident” truth of liberty and equality:  “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Guided by this framework, the United States Supreme Court has declared the right to marry as “fundamental” and one of the “basic civil rights of man.” Loving v. Virginia, 388 U.S. 1, 12 (1967). Its decisions have made clear that “the freedom of personal choice in matters of marriage and family life is one of the liberties” protected by the Fourteenth Amendment. Zablocki v. Redhail, 434 U.S. 374, 393 (1978).

In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court repeatedly emphasized that although the States may generally define and regulate marriage, that such laws, “of course, must respect the constitutional rights of persons.” Id. at 2691. In striking down Section 3 of the Defense of Marriage Act, the Court recognized that “the avowed purpose and practical effect of the law… [was] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages…” Id. at 2693.

Recognizing that the “liberty protected by the Fifth Amendment’s Due Process Clause contains within in the prohibition against denying to any person the equal protection of the laws,” the Court added that, “the equal protection guarantee of the Fourteenth Amendment makes the Fifth Amendment right all the more specific and all the better understood and preserved.” Id. at 2695.

In 2006, in response to the recognition of same-sex couples by the other States and jurisdictions, a group of South Dakotans sought to “protect marriage” by denying same-sex couples the right to marry in the State by restricting the definition of marriage to “a man and a woman” in the South Dakota Constitution via “Amendment C.” The amendment, which passed by approximately 12,000 votes on November 7, 2006, didn’t stop at denying loving and committed same-sex South Dakotan couples the right to marry; it also refuses to allow the South Dakota government the authority to recognize marriages, civil unions, domestic partnerships, and “all other quasi-martial unions” performed in other States and jurisdictions. The avowed purpose—and the practical effect—of Amendment C’s ratification was born of a bare desire to impose a disadvantage, a separate status, a stigma, and a harm upon a politically unpopular group.

South Dakota passed Amendment C despite the fact that in 1996 the South Dakota legislature had already banned same-sex marriage by enacting changes to Title 25 of its Codified Laws. These changes — intended as a response to court decisions indicating that Hawaii might allow same-sex couples to marry — included language that prohibited marriage of same-sex couples and voided same-sex marriages from other jurisdictions. By way of example, Title 25 of South Dakota Codified Law provides:

(a)       Marriage is a personal relation, between a man and a woman, arising out of a civil contract to which the consent of the parties capable of making it is necessary.  Consent alone does not constitute a marriage; it must be followed by a solemnization. S.D. Codified Laws § 25-1-1. (c)       Any marriage contracted outside the jurisdiction of this state, except a marriage contracted between two persons of the same gender, which is valid by the laws of the jurisdiction in which such marriages was contracted, is valid in this state. S.D. Codified Laws § 25-1-38.

Via the Constitution and the statutory bans (“hereinafter collectively referred to as “the marriage bans”), South Dakota refuses to confer the rights and responsibilities of marriage upon same-sex couples, and refuses to recognize same-sex marriages performed in other jurisdictions; by doing so, South Dakota has given effect to the private biases of a simple majority. Without any legitimate governmental interest, South Dakota has targeted a minority of individuals for discrimination on the basis of sexual orientation. By this Complaint, Plaintiffs seek to end that unlawful discrimination.

The above-named loving and committed couples ask this Court to hold that the State of South Dakota cannot discriminate against same-sex couples who seek the right to marry; and, they ask this Court to hold that South Dakota cannot discriminate against same-sex marriages in choosing whether or not to recognize marriages performed out of state.

Named Plaintiffs Nancy and Jennie Rosenbrahn and Named Plaintiffs Clay Schweitzer and Jeremy Coller are individuals living in the State of South Dakota. They are loving and committed same-sex couples who wished to marry while living in South Dakota and applied for marriage licenses in South Dakota but were denied on the basis of their same-sex partnerships. As a result, both couples were forced to travel hundreds of miles, across State lines, and to another time zone in order for other States to confer upon them the dignity and respect that is deserved by all loving and committed couples under the law. These Plaintiffs wish for the State of South Dakota to now respect and recognize their lawfully obtained marriages, and for this Court to declare South Dakota’s refusal to recognize their lawfully obtained out-of-state marriages as unconstitutional.

Named Plaintiffs Krystal Cosby and Kaitlynn Hoerner are individuals in a female same-sex relationship; they are presently living in the State of South Dakota and seek the right to marry in South Dakota. They applied for a marriage license in South Dakota but were denied on the basis of their same-sex partnership. These Plaintiffs seek the right to marry in South Dakota, and for this Court to declare South Dakota’s refusal to do so as unconstitutional.

Named Plaintiffs Lynn and Monica Serling-Swank are individuals in a same-sex marriage who are presently living in the State of South Dakota but who were living outside of South Dakota when they were lawfully unionized by another State. South Dakota refused to recognize their union when they traveled and moved into the State. They wish for the State of South Dakota to now respect and recognize their lawfully obtained marriage and for this Court to declare South Dakota’s refusal to do so as unconstitutional.

Named Plaintiffs Barbara and Ashley Wright and Named Plaintiffs Greg Kniffen and Mark Church are individuals residing in South Dakota who are also in loving, committed, same-sex relationships. These couples wished for the right to be married while living in the State of South Dakota but could not do so due to South Dakota’s discriminatory laws. Accordingly, these couples lawfully married outside the State of South Dakota and now seek South Dakota’s respect and recognition of their marriages.

Marriage plays an important role in our society.  In addition to being the celebration and hallmark of a couple’s commitment to build their lives and family together, it confers dignity, status, rights, and responsibilities. Plaintiffs have formed or want to form enduring bonds worthy of the respect that the State affords to different-sex couples through marriage. Yet, the State has deprived gay and lesbian South Dakotans of the right to marry their chosen partners and declines to recognize lawful marriages entered in other jurisdictions based on sexual orientation and sex. The State’s discriminatory “marriage bans” are enshrined in South Dakota statutes and in South Dakota Constitution Article 21, § 9, which limits marriage to couples composed of “a man and a woman.”

The marriage bans inflict serious and irreparable harms upon same-sex couples and their children that cannot be explained by reference to any legitimate governmental interest.

Same-sex couples are identical to different-sex couples in all characteristics relevant to marriage.

Same-sex couples make the same commitment to each other as different-sex couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan their futures together, hope to grow old together, and seek to make decisions about end of life and post-life planning together. Like different-sex couples, same-sex couples support each other emotionally and financially, and take care of each other when faced with injury or illness.

Same-sex couples seek to marry for the same emotional and romantic reasons and the same reasons of dignity as different-sex spouses. They desire to declare their love and commitment before their families, friends, and community, and to obtain the status, security, protections, and responsibilities of marriage.

Like some different-sex couples, some same-sex couples, including Named Plaintiffs Krystal Cosby and Kaitlynn Hoerner and Named Plaintiffs Barbara and Ashley Wright, are parents raising children together. These couples and their children are equally worthy of the tangible rights and responsibilities, as well as the respect, dignity, and legitimacy, that access to marriage confers on different-sex couples and their children. For the many children born to or being raised by same-sex couples, the tangible resources and societal esteem that marriage confers are no less necessary and precious than for children of different-sex couples.

Our courts and our society have discarded, one by one, marriage laws that violated the United States Constitution’s mandate of equality and liberty, such as anti-miscegenation laws and laws that denied married women independence and the right to make their own decisions. History teaches us that the vitality of marriage does not depend on maintaining discriminatory laws, and that eliminating unconstitutional restrictions on marriage has enhanced the institution. Indeed, in 17 states and the District of Columbia, same-sex couples are legally marrying and the institution of marriage continues to thrive.


This action arises from a dispute involving the Constitution and the laws of the United States.

This Court, therefore, has federal question subject matter jurisdiction pursuant to Title 28 United States Code §§ 1331 and 1343.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391, as all Defendants reside within this State and District and a substantial part of the events that gave rise to Plaintiffs’ claims took place in this State and District.

This Court has personal jurisdiction over Defendants because they are residents of, and domiciled in, this State and District.

This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.


A.            Named Plaintiffs

Plaintiffs are each individual “persons” within the meaning of 42 U.S.C. § 1983.

Jennie and Nancy Rosenbrahn

Named Plaintiffs Nancy Rosenbrahn, age 68, and Jennie Rosenbrahn, age 72, are adult individuals in a female same-sex relationship. They reside in Rapid City, South Dakota. Together, the couple owns and manages a mobile home park in Rapid City and provides foster housing for rescued dogs.

A native of Milwaukee, Wisconsin, Nancy settled in Rapid City in 1973. She subsequently operated a drive-in near Keystone, South Dakota and a roller skating rink in Rapid City.

Jennie grew up in rural Louisiana and also moved to Rapid City in the mid 1970’s. In the early 1980’s, Jennie became the owner of the land containing the Ash Mobile Home Park.

Nancy and Jennie first met at a friend’s home for lunch in 1983. Following four years of courtship, they fell in love and began their relationship in 1987, with the couple driving to Kay Jewelers in the old Rapid City Mall and buying rings to signify their love and commitment to each other.

For the past three decades, Nancy and Jennie have lived together as a couple and have brought their families together. Between the two of them, they have four children, which in turn have given Nancy and Jennie six beautiful grandchildren.

Ethan, one of their grandsons, was a curious nine-year-old boy when one day a couple years ago, Nancy recalls Ethan asking her how she felt about the fact that her and Grandma Jennie couldn’t get married like his parents. The question pulled at Nancy’s heartstrings, as it was evident to Nancy that Ethan was sad and confused as to why his grandmothers were treated differently by society.

Despite being together for so long, due to South Dakota’s installment of laws that deny them recognition as a couple, many South Dakotans do not realize that Nancy and Jennie are in a relationship. That hurts Nancy and Jennie, who show the kind of love and dedication for each other that so many dream of having; yet, they are often assumed to be sisters.

As Nancy and Jennie began making end-of-life planning decisions, they were forced to recognize that South Dakota, the State in which they’ve spent nearly 30 years building a life together and wish to remain for their lives’ durations, refuses to recognize their relationship. That refusal has numerous negative consequences for the couple; for example, under South Dakota law, if Jennie were to pass away, Nancy would have no stake in the mobile home park they operate together.

In light of all of the above, in 2013, after hearing the story of Edith Windsor and Thea Spyer, and after reading the Supreme Court decision, Nancy asked Jennie to marry her, and Jennie happily agreed.

On March 10, 2014, Nancy and Jennie applied for a marriage license at the Pennington County Register of Deeds in Rapid City. An agent for Defendants Dennis Daugaard, Marty Jackley, Doneen Hollingsworth, and Donna Mayer denied this loving and committed couple of 27 years a marriage license simply because they are both females.

Nancy and Jennie wanted to marry in South Dakota for several reasons, including to be recognized by their State as a loving and committed couple without having to explain their relationship to others. They wanted to protect the life they had built together and be sure that end of life planning decisions, including the transfer of assets, available survivorship benefits, etc., would be protected.

As parents and grandparents, they wanted to be recognized as a family equal to others. As evidenced by Ethan’s question, their grandchildren are old enough to understand that their grandparents were not married and are not treated the same as other families by the government, and he struggles to understand why. Ethan wanted Nancy and Jennie to be married like many of his friends’ parents and grandparents. Nancy and Jennie found it painful that they couldn’t fulfill his wish in South Dakota.

On April 26, 2014, pursuant to a lawfully obtained marriage license issued by the State of Minnesota, Nancy and Jennie were married at the Community of Christ Church in Minneapolis, Minnesota.

Minneapolis Mayor Betsy Hodges officiated the couple’s ceremony.  Mayor Hodges said, “Knowing that marriage even so is a powerful bond when recognized by the law and therefore by your community, in a new way, do you, Jennie, now choose marriage to Nancy under the law? And do you, Nancy, now choose marriage to Jennie under the law?” With tearful joy, both enthusiastically answered, “yes.”

After the ceremony, the couple celebrated with their closest family and friends. Their daughter baked what is arguably the world’s most delicious cake. Prior to being married in Minnesota, the couple had different last names.  When they were married, they combined their last names of “Robrahn” and “Rosenkranz” into “Rosenbrahn,” as indicated on their Minnesota marriage license. After their wedding ceremony, the couple traveled back to South Dakota, where the State refuses to recognize their marriage and still sees them as “Nancy Robrahn” and “Jennie Rosenkranz.”

On May 8, 2014, Nancy and Jennie went to the Rapid City licensing station to change their name in light of their marriage. An agent for Defendants Daugaard and Jackley and Defendant Trevor Jones denied the couple the right to change their name, handing them a form that said, “Marriage certificates for same sex couples aren’t valid in this State.” (emphasis in original).

Nancy and Jennie want their drivers’ licenses to carry their jointly held last name. Unlike different-sex couples, who simply present a marriage certificate in order to do so, Nancy and Jennie are required to go through the onerous, time-consuming, and cost-involved process of asking a court to issue an order allowing them to change their names.

Jeremy Coller and Clay Schweitzer

Named Plaintiffs Clay Schweitzer and Jeremy Coller are adult individuals in a male same-sex relationship. The couple resides in Rapid City, South Dakota. Jeremy is a Registered Nurse and Clay is the nursing director at the Theres A Hart Assisted Living Facility.

Clay was born in Aberdeen, South Dakota and moved to Rapid City when he was two years old. Raised in Rapid City, Clay grew up in a loving home with a family that has always fully supported him in life and in love. Clay went to nursing school in Rapid City and is now a geriatric nurse, which he considers his passion. Clay grew up believing in the American Dream; for as long as he can remember, he’s always wanted to fall in love, get married, have kids, and build a life centered around strong family values. Now that Clay has found Jeremy, the love of his life, he wants to continue building that dream.

Jeremy was born in Rapid City and raised in Kadoka, South Dakota and Custer, South Dakota. Jeremy earned his bachelor’s degree in business hospitality from Northern Arizona University and subsequently moved to Denver, Colorado, where he began his career with a leading hotel chain. In 2009, Jeremy’s stepfather was diagnosed with cancer; Jeremy saw it as a calling to move back home and help care for his parents. He decided South Dakota is where he belonged, and he went back to school. Jeremy then completed the nursing program at the University of South Dakota. And, while he was there, in 2010, he met Clay through mutual friends. Soon thereafter, he fell in love.

Clay and Jeremy share an affinity for animals and the outdoors; their joint hobbies include camping, gardening, playing with their two dogs and four cats, and building their home together. Clay and Jeremy have always wanted to be married and to have children together.

On August 8, 2013, surrounded by friends and family in the Black Hills, Clay proposed to Jeremy in a beautiful surprise engagement. The engagement was captured on video and preserved online.[2]

On April 23, 2014, Clay and Jeremy applied for a marriage license at the Pennington County Courthouse in Rapid City. An agent for Defendants Daugaard, Jackley, Hollingsworth, and Mayer denied the couple a marriage license simply because they are both male.

The couple wanted a lawful marriage, which South Dakota would not allow. Accordingly, Clay and Jeremy chose to be married in Iowa since it was closer to Clay’s brother’s home. On May 14, 2014, they were married in Sioux City, Iowa before a few close friends and family. In September 2014, Clay and Jeremy plan to have a ceremony and reception in the Black Hills to celebrate with the rest of their friends and family in South Dakota.

Having their marriage recognized in their home state of South Dakota is important to Clay and Jeremy, especially as they prepare for having children. Clay and Jeremy want to be sure that adequate legal protections are available for their family. The State’s refusal to recognize their marriage hurts them and burdens their family in many ways. For example, unlike different-sex couples, since their Rapid City home is in Jeremy’s name, if he were to pass away, Clay would not be considered family and wouldn’t be eligible under the State’s intestacy laws to inherit the home or any portion of Jeremy’s assets. Clay and Jeremy also worry about having children in South Dakota because of the stigma and lack of protections they and their children will face due to South Dakota’s refusal to recognize their marriage.

Lynn and Monica Serling-Swank

Named Plaintiffs Lynn Serling-Swank and Monica Serling-Swank are adult individuals in a female same-sex relationship. They reside in Brandon, South Dakota. They have been together for over 12 years. They both work at the same credit card company in Sioux Falls, South Dakota, whe