Remember how Attorney General Marty Jackley is arguing that the Supreme Court’s ruling for same-sex marriage in Obergefell v. Hodges means the Eighth Circuit should throw out Judge Karen Schreier’s ruling for the loving plaintiffs in Rosenbrahn v. Daugaard, the lingering lawsuit against South Dakota’s gay-marriage ban?
Funny: that’s not the conclusion other federal appeals courts are reaching.
- The First Circuit ruled last week that a district court erred in dismissing a lawsuit challenging Puerto Rico’s gay-marriage ban. The appeals court sent the case back to the district court to issue the proper and obvious ruling in light of Obergefell v. Hodges. Puerto Rico Governor Alejandro García Padilla said his administration would stop fighting same-sex marriage last March.
- The Fifth Circuit told District Judge Martin Feldman to reverse his ruling upholding Louisiana’s same-sex-marriage ban. That final step was necessary to get Louisiana Governor Bobby Jindal to surrender to the law of the land.
- The Fifth Circuit used the same language to tell Texas to back off its same-sex marriage ban. Texas AG Ken Paxton mirrored our AG Jackley in making the erroneous argument that public employees have a constitutional right not to fulfill their duties (which argument could get Paxton disbarred), but unlike Jackley, Paxton is dropping his appeals of marriage-ban rulings.
- The Fifth Circuit lifted the stay U.S. District Judge Carlton Reeves had placed on implementation of his ruling in favor of plaintiffs challenging Mississippi’s gay-marriage ban. The appeals court returned the Mississippi case to the district for entry of final judgment in favor of the plaintiffs.
The Mississippi example is really important, since it mirrors what the plaintiffs in the South Dakota case are now asking of the Eighth Circuit. In filings to the Eighth Circuit, plaintiffs’ attorney Joshua Newville says that AG Jackley is blowing smoke when he says Obergefell v. Hodges proves that Judge Schreier erred in her judgment for the plaintiffs. Quite the contrary: as I pointed out last week, Judge Schreier’s January 2015 ruling for the South Dakota plaintiffs used pretty much the same reasoning the Supreme Court used to determine that homosexual couples enjoy the same fundamental right to get married as heterosexuals. The Supreme Court nixed the Bruning precedent that Jackley says makes Schreier’s ruling wrong. Had no other same-sex-marriage case existed, and had Judge Schreier’s ruling been the one appealed to the Supreme Court, Justice Ginsburg and the majority would have said, “Sit down, Marty—Schreier’s right, you’re wrong.”
The plaintiffs argue that AG Jackley is misrepresenting the basic principle of judicial review: appeals are heard de novo, “applying precedent that is in place at the time of review.” Jackley’s argument thus hinges on asking the Eighth Circuit to simultaneously (1) ignore Obergefell v. Hodges in order to declare that Judge Schreier erred strictly under prior precedent and (2) embrace Obergefell v. Hodges as the guarantee that South Dakota will abandon prior precedent and respect the plaintiffs’ rights without any need of Judge Schreier’s ruling.
AG Jackley, you’ve tied Rosenbrahn v. Daugaard into such knots that your best option is surrender. You’re not going to stop same-sex marriage. You’re not going to prove that South Dakota was right to discriminate against Rosenbrahn et al. And you’re not going to get the Eighth Circuit to pick your contradictions over the example of the First and Fifth Circuits.