The Supreme Court is still weighing taking another same-sex marriage case, but in the meantime, another domino has fallen. A federal judge ruled Monday that South Dakota’s ban on same-sex marriage is unconstitutional, but she stayed her ruling pending appeal to the Eighth Circuit.
U.S. District Judge Karen Schreier, a Clinton appointee, concluded in her ruling that South Dakota’s ban violated both same-sex couples’ due process, because marriage is a fundamental right, and equal protection, because the ban does not further a compelling state interest.
“The right at stake is not a new right to same-sex marriage, as defendants contend,” Schreier wrote. “Instead, the substantive due process right is the right to marry, which right is fundamental. South Dakota’s marriage laws significantly interfere with this fundamental right by preventing same-sex couples from marrying and refusing to recognize out-of-state same-sex marriages.”
The South Dakota case was brought by numerous plaintiffs, many of whom had married in another state but could not be recognized in South Dakota, creating a myriad of legal problems. One couple was denied hospital visitation because their relationship was not recognized, and another struggled to change the name on her state driver’s license (her maiden name) to match her social security card (her married name). Others were unable to ensure that both spouses had legal guardianship of the children they were raising together.
Schreier ended by referencing Loving v. Virginia, the case in which the Supreme Court overturned all bans on interracial marriage. “Little distinguishes this case from Loving,” she concluded. “Plaintiffs have a fundamental right to marry. South Dakota law deprives them of that right solely because they are same-sex couples and without sufficient justification.”
South Dakota is in the Eighth Circuit, where so far, no case has advanced to the appellate level. If the Supreme Court announces that it might take up one of the other cases, like those from the Sixth Circuit, any appellate review may be put on hold until the Supreme Court’s next ruling.