Jackley Argument to Overturn SD Marriage Ruling Bogus—See First and Fifth Circuit Rulings

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 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.


14 Responses to Jackley Argument to Overturn SD Marriage Ruling Bogus—See First and Fifth Circuit Rulings

  1. Deb Geelsdottir

    It’s so nice that Jackley is cheerily spending more SD taxpayer money on frivolous legal games. Sounds like a reason for attorney general tort reform. I wonder how many miles of roads could be fixed, or teachers hired with the money he’s pouring down the frivolous legal games black hole?

  2. Nick Nemec

    I’m trying to decide if AG Jackley is attempting to shore up his support among the Christian right with an eye on a future run for higher office, or if he is a true believer willing to buck the Constitution in order to force those beliefs on the rest of society.

  3. Trash jockey Marty Jackley is swinging again off the back of the truck of his office’s Constitutional Garbage Hauling Service. What a putz! Let’s hope the media will do their job this time and report how much public money he wastes playing cheap politics for his very narrow personal agenda.

  4. bearcreekbat

    Nick, your question is easily answered by reviewing all of Jackley’s actions on social issues, including the ACA.

  5. Jackley is all political theater clearly with furthering his political career in mind. It’s amazing he still thinks people are going to buy the garbage he’s recycling!

  6. AG tort reform-great new term. like political extremism/obstruction.

  7. AG-“attorney general “TORTS REFORM”. like deb said!!

  8. mike from iowa

    Maybe this blog needs a public opinion poll on whether people have faith in the goobernor,the lege,the AG,etc. Why are these people allowed to swear an oath to uphold anything when it is obvious the oath means nothing because of political contributions?

  9. mike from iowa

    Yeah,Deb is god!

  10. Deb is god? Deb is God? Deb is a goddess?

  11. Deb Geelsdottir

    Why thank you Mike. I think being an All Powerful One could be a lot of fun. Oh, I have so many ideas! Bwahahahaha!!!

  12. mike from iowa

    and a wicked laugh. Gopher it.

  13. Nick, I’m with CLCJM. It’s theater. Ascribing a deep political philosophy to our Attorney General feels like a stretch.

  14. TY, Cory! The way I see it, nearly everything that the Republicans do is theater, an act to deceive the public and the voters so they can continue their shenanigans with what they think is impunity! The people aren’t as blind or stupid as they would like to believe. That’s why there are so many people changing their voter registration to independent! And why Republicans had to change the nominating petition laws to eliminate the competition! and why we were able to refer that despicable twisted law to a vote of the people!!!