Building toward a test on same-sex marriage in one of the handful of federal appeals courts that have not yet ruled on the issue, a federal trial judge in South Dakota on Monday struck down that state’s ban. That means that such marriages are now legal, or may be on their way to legality, in five of the seven states in the geographic region of the federal Eighth Circuit.
U.S. District Judge Karen E. Schreier of Sioux Falls declared that the ban fails the most rigorous constitutional test that can be used — “strict scrutiny” — because marriage is a fundamental right that must be open to gays and lesbians, too. The judge also found that it violated the rights of six same-sex couples in the state to legal equality under the Fourteenth Amendment.
The U.S. Court of Appeals for the Eighth Circuit is one of four federal appeals courts that have not yet issued decisions in the round of rulings in the past eighteen months across the nation. The others are the Fifth Circuit, which held a hearing last Friday on three states’ bans, the First Circuit, where a case from Puerto Rico is pending; and the Eleventh Circuit, where a case from Florida is under way. Five circuits have ruled against such bans, and the Sixth Circuit is so far the only one to uphold state bans.
Judge Schreier put her decision on hold, to keep things unchanged in South Dakota during an appeal to the Eighth Circuit. That court also has pending before it cases in which judges in Arkansas and Missouri have struck down prohibitions on same-sex marriages. Lawsuits are pending in Nebraska and North Dakota. Iowa and Minnesota already permit same-sex marriages.
The case before the Sioux Falls judge involved one couple seeking to marry and five couples who were married in other states but now seek official recognition of their marriages in their home state.
The Eighth Circuit is being followed closely by advocates on both sides of the same-sex marriage issue, because that court ruled against same-sex marriage in 2006, in a Nebraska case. Judge Schreier, in a preliminary ruling in mid-November, ruled that the decision in that case does not control new cases because it did not involve a direct test of the constitutionality of a same-sex marriage ban.
Although most of Judge Schreier’s reasons for nullifying the South Dakota ban on Monday were familiar from other decisions, she was among the first to reject what has been a more recent claim by state officials: that is, that marriage is a domestic relations matter, and that federal courts have no jurisdiction over such matters. There is such an exception, the Sioux Falls judge found, but that it does not go so far as to bar new constitutional claims against same=sex marriage bans.
If Judge Schreier’s decision is upheld by the Eighth Circuit, and if that appeals court were also to uphold the similar decisions in the pending Arkansas and Missouri cases, that would bring the number of states where same-sex marriages are legal to thirty-nine. Washington, D.C., also permits such unions.