South Dakota Judge Strikes Down Gay Marriage Ban, Calling it Unconstitutional

A federal judge struck down the gay marriage ban in South Dakota in a ruling on Monday. U.S. District Judge Karen Schreier declared the bans as a hindrance and direct obstruction to the constitutional rights of same-sex couples.

The ruling and reasoning behind the case is similar to the recent trend in cases about same-sex marriage bans. Currently, 36 states allow gay marriage in addition to the District of Columbia. That number is double what it was a year ago. Judge Schreier claimed that the plaintiffs, 6 same-sex couples, have a fundamental right to marry; she put a stay on her decision for the opposing side to put in an appeal to the high court.

Schreier defined fundamental rights in a court document. “A fundamental right is a right that is 'objectively, deeply rooted in this Nation’s history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed,'" wrote Schreier.

“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,” she wrote.

The federal judge continued to explain her decision, drawing parallels between the issue of same-sex marriage and interracial marriage. Schreier referenced Loving v. Virginia in order to prove that marriage is a fundamental right. “‘Although Loving arose in the context of racial discrimination, prior and subsequent decisions of [the Supreme] Court confirm that the right to marry is of fundamental importance for all individuals,’” quoted Schreier from Zablocki v. Redhail.

The defendants argued that the fundamental right to marriage, though valid, does not encompass the right of same-sex marriage. According to Judge Schreier’s writing, the defendants also called same-sex marriage a slippery slope that has the potential to pave a way for incest and polygamy. The judge dismissed the argument, stating that it was irrelevant.

“Regulations on polygamy or incest are not at issue in this case. Additionally, this argument is logically flawed and distracts from the distinct issue presented by same-sex marriage bans,” wrote the judge.

Opponents of same-sex marriage believe that the state government should decide the legality of same-sex marriage, and that the courts should not be able to decide the constitutionality of same-sex marriage for the entire state.

South Dakota Attorney General Marty Jackley plans to appeal Judge Schreier’s ruling. “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,” he said.