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Marriage by same-sex couples in South Dakota.

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The term "LGBT" refers to the Lesbian, Gay, Bisexual and Transgender community.

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US map with South Dakota highlighted South Dakota is the "Mount Rushmore State." It:

  • is unofficially called the Sunshine, Coyote, Artesian, or Blizzard state, or the "Land of infinite variety."

  • is located in the midwestern region of the United States.

  • Is named after the Lakota and Dakota Sioux Native American tribes.

  • contains the location of the 1890 Wounded Knee Massacre of Native Americans by the U.S. Army.

  • contains the North America continental pole of inaccessibility -- that point in North America that is farthest from a coastline.

  • is represented in Congress by Senators John Thune and Mike Rounds, and one Representative, Kristi Noem. All are Republicans.

  • has as Governor Dennis Daugaard and as Attorney General Marty Jackley. Both are Republicans.

  • has the motto: "Under God, the people rule. 1 That would seem to imply that South Dakota is a pure democracy where the people's vote determines the ultimate law of the land. On the other hand, most constitutional experts regard the United States as being a constitutional democracy in which federal constitution is the ultimate law. This conflict is the core problem affecting marriage by same-sex couples in the state. There is no consensus on which is the ultimate authority in the state -- the voters of South Dakota or the federal Constitution. Somehow, federal, state, and local civil servants stumble through each day without knowing what the true nature of the country's legal structure is.

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Timeline of activities related to marriage by same-sex couples in South Dakota:

  • 2004-MAY: SSMs first become legal in the U.S. This was the year that same-sex couples were able to marry in Massachusetts -- the first state to do so on a sustained basis. At that time, support for same-sex marriage (SSM) in South Dakota was only about 24%. 2

  • 2006-NOV: Voters amend state Constitution: Voters approved Amendment C. It added Article XXI, Section 9 to the state Constitution, prohibiting marriage, civil unions, and domestic partnerships by same-sex couples in the state. It also denies recognition of legal marriages, etc. by same-sex couples in other states. The amendment passed by a surprisingly narrow margin: 52% to 48%. Considering the rapid rise in support for SSMs and rapid decline of opposition nationally since 2006, if the amendment were voted on today, it would certainly fail. In addition to this amendment, statute SDCL 25-1-1 also restricts marriage to one woman and one man. 3

  • 2006-NOV: Exclusion of same-sex couples from marriage: The U.S. 8th Circuit Court of Appeals includes under its jurisdiction South Dakota, Nebraska and five other contiguous states. The Court ruled that Nebraska's definition of marriage -- which is similar to South Dakota's and restricts marriage to the union of one woman and one man -- was constitutional.

  • 2012: Surveys of voters' support for SSM. The Williams Institute at UCLA listed the 50 states in order of their adults' percentage support for SSM at the time. South Dakota was very close to the middle of all states, at 45% support. 2

  • 2014-MAY-22: SSM lawsuit filed in federal court: The case "Rosenbrahn v. Daugaard" was filed in the South Dakota District Court. The Court file number is 14-4081. Six couples want South Dakota to practice marriage equality by legalizing SSM in the state and also by recognize such marriages solemnized in other states. The lead plaintiff same-sex couple are Jennie and Nancy Rosenbrahn. Lead defendant is Governor Dennis Daugaard. 6

Among the plaintiffs:

  • Two of the couples attempted to obtain a marriage license in South Dakota, were refused, married in other states, returned to South Dakota, and want their marriage to be recognized where they reside.

  • Three of the couples did not try to obtain a license in South Dakota. They were legally married out-of-state, returned to South Dakota, and want their marriage recognized.

  • One couple is unmarried; they want to marry in South Dakota where they life. 5

The plaintiffs' complaint is based on the same grounds as dozens of similar cases in state and federal courts have used since mid-2013. On 2013-JUN-26, the U.S. Supreme Court issued its ruling in Windsor v. United States. It declared a major part of the federal Defense of Marriage Act (DOMA) to be unconstitutional. The ruling was based on the Due Process and Equal Protection clauses in the 14th Amendment of the U.S. Constitution. These clauses require governments to treat people -- and couples -- equally.

The plaintiffs' complaint in "Rosenbrahn v. Daugaard" states that Amendment C -- the 2006 state constitutional amendment that bans SSM:

    "... 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. ..."

    "Gay and lesbian individuals have faced a long and painful history of societal and government-sponsored discrimination in this country. Although their sexual orientation bears no relation to their ability to contribute to society, gay men and lesbians have been singled out for discriminatory treatment. They have faced unconstitutional criminal penalties for private sexual conduct between consenting adults, harassment, hate crimes, and discrimination in employment and may other areas. They have even been the subject of laws stripping them of rights afforded to all other citizens.

    South Dakota has been among the states that have enacted laws stripping gay men and lesbians of rights afforded to all other citizens. Gay men and lesbians also have been the subject of hate crimes in South Dakota. ..."

    "By excluding Plaintiffs from marriage and from recognition of their lawful out-of-state marriages, the State subjects Plaintiffs to legal vulnerability, unequal financial burdens, and related stress, while depriving them and their children of equal dignity and security. South Dakota’s marriage bans send a purposeful message that the State views lesbians and gay men and their children as second-class members of society who do not deserve the same legal sanction, legal protection, respect, support, responsibilities, and obligations as different-sex spouses and their families. ..."

    "There is no legitimate interest, let alone an important or compelling one, in excluding same-sex couples from the institution of marriage.
    Neither history nor tradition can justify the exclusion of same-sex couples from marriage. Marriage has remained vital and enduring because of its resilience in response to a dynamic society, as society and the courts have cast off restrictions on, for example, interracial marriage and coverture." 6

Copyright restrictions limit us from showing more of the complaint. It is superbly written and is well worth reading. 4

As is almost universal practice when writing about same-sex couples and their marriages, their complaint refers only to gays and lesbians. Ignored are bisexuals who are sometimes involved in same-sex relationships with a gay, a lesbian or another bisexual person.

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  • 2014-JUL-03: Plaintiffs ask District Court to declare marriage ban unconstitutional:

The National Center for Lesbian Rights reports:

    "The six couples filed a motion asking the court to rule that South Dakota’s ban on marriage for same-sex couples violates the equal protection and due process guarantees of the [14th Amendment to the] United States Constitution.

    The District Court heard arguments on October 17, 2014 in Sioux Falls. The Attorney General’s Office argued that a 2006 8th Circuit Court of Appeals case required dismissal. Plaintiffs’ attorney Joshua Newville argued that case isn’t on point and that the controlling decision is United States v. Windsor, the 2013 Supreme Court case that struck down the federal Defense of Marriage Act." 7

  • 2014-SEP-08: Attorneys General file a request with the U.S. Supreme Court:

State AGs from 19 states, including South Dakota, made a joint request to the United States Supreme Court asking them to rule on whether the U.S. Constitution requires states to recognize same-sex marriages. Marty Jackley, Attorney General for South Dakota wrote:

    "I have joined the bipartisan Attorneys General request to the U.S. Supreme Court as it offers the most realistic and cost effective approach to defending both our State Constitution and statutory law.  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. 8

At the time there were:

"... an astounding 89 cases challenging traditional marriage laws in the 31 States that define marriage as the legal union of a man and a woman." 8

  • 2014-OCT-07: On OCT-06, the U.S. Supreme Court's denied the appeal of same-sex marriage rulings from the U.S. 4th, 7th, 9th and 10th Circuit Courts of Appeal. Responding to this decision, South Dakota's Attorney General Marty Jackley wrote:

    "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.  This longstanding tradition and fundamental principle will now be tested in federal district court and likely the Eighth Circuit Court of Appeals." 9

Webmaster's note:

A.G. Jackley's comment seems redundant, because there is a consensus that "the institution of marriage should be defined by the voters of South Dakota," either directly in the form of a vote on an amendment to the state Constitution, and/or indirectly through a statute passed by the legislature whose members are elected by the voters.

However, that is not the core issue here. It is whether the state's existing definition of marriage which bans same-sex couples from marrying, violates the 14th Amendment of the U.S. Constitution. If the Constitution is regarded as the highest law of the land, then there must be some valid, overriding concern about marriage by same-sex couples before the state can legitimately identify this one group among the population, and to deny them Due Process and Equal Protection by refusing to let them marry.

Although A.G. Jackley's oath of office includes a promise to uphold the U.S. Constitution, he appears to regard the state voters' choice as the ultimate authority rather than the U.S. Constitution. This is a common point of view among religious and political conservatives. More details.

  • 2015-JAN-12: District Judge finds same-sex marriage ban unconstitutional:

U.S. District Judge Karen E. Schreier ruled that marriage is a fundamental right and therefore must be judged by the criteria of "strict scrutiny" -- the most rigorous constitutional test possible. She found that the state Constitution's ban on marriages by same-sex couples is unconstitutional because it violates the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution.

The state had claimed that federal courts have no jurisdiction in this case because marriage is a domestic relations matter. Judge Schreier found that this argument is invalid because this case involves a constitutional challenge.

She placed a stay on her ruling to prevent same-sex couples from marrying in order to give the state an opportunity to appeal the case to the U.S. 8th Circuit Court of Appeals.

South Dakota is one of the seven states within the jurisdiction of the 8th Circuit. Among the other six states:

  • Arkansas: A District Court ruling found the state's SSM ban unconstitutional. The case has been appealed to the 8th Circuit.
  • Iowa: The state already offers marriage equality.
  • Minnesota: The state already offers marriage equality.
  • Missouri: A District Court ruling found the state's SSM ban unconstitutional. The case has been appealed to the 8th Circuit.
  • Nebraska: The 8th Circuit ruled against plaintiffs seeking marriage equality during 2006. A new case is active at the District Court level.
  • North Dakota: A case is active at the District Court. 10

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News of further developments are inevitable.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "South Dakota," Wikipedia, as on 2015-JAN-08, at: http://en.wikipedia.org/
  2. Andrew Flores & Scott Barclay, "Figure 2," Public Support for Marriage for Same-sex Couples by State, The Williams Institute, 2013-APR, at: http://williamsinstitute.law.ucla.edu/
  3. "South Dakota’s Definition of Marriage Remains in Effect after U.S. Supreme Court Rulings," SD Attorney General's office, 2013-JUN-26, at: http://atg.sd.gov/
  4. "May 2014: Madia Law Files Historic Lawsuit Challenging South Dakota Same-Sex Marriage Ban," Madia Law, 2014-MAY-29, at: http://madialaw.com/
  5. "Case Rosenbrahn v. Daugaard," National Center for Lesbian Rights, 2015-JAN, at: http://www.nclrights.org/
  6. "Coverture" is defined in Google as "the legal status of a married woman, considered to be under her husband's protection and authority."
  7. "Case summary & history: Rosenbrahn v. Daugaard," National Center for Lesbian Rights, circa 2015-JAN-15, at: http://www.nclrights.org/
  8. "Attorney General Jackley Joins Bipartisan Attorneys General Group Requesting US Supreme Court to Address Same Sex Marriage Cases," South Dakota State News, 2014-SEP-08, at: http://news.sd.gov/
  9. "Status of Same-Sex Marriage Case after United States Supreme Court Decision," SD Attorney General's office, 2014-OCT-07, at: http://atg.sd.gov/
  10. "Judge strikes down South Dakota's gay marriage ban," KOTA-TV, 2015-JAN-12, at: http://www.kotatv.com/


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    Home > Religious info. > Basic > Marriage > SSM > Menu > here

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    Copyright © 2015 by Ontario Consultants on Religious Tolerance
    Originally posted: 2015-JAN-16
    Latest update: 2015-JAN-19
    Author: Bruce A Robinson
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