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Eighth Circuit Rebuffs Jackley, Defers to Supreme Court on Same-Sex Marriage

I noted a few weeks ago that South Dakota Attorney General Marty Jackley was subjecting our thus far same-sex marriage plaintiffs and the taxpayers to unnecessary expense by pushing for the Eighth Circuit to hear the state’s appeal of Judge Karen Schreier’s January overturning of our state’s same-sex marriage ban in May, before the Supreme Court’s impending ruling on same-sex marriage.

Happily, the Eighth Circuit agrees that its hearing the South Dakota case prior to the Supreme Court ruling is silly. The Eighth Circuit has cancelled the hearing AG Jackley wanted, as well as hearings on same-sex marriage cases from Nebraska, Missouri, and Arkansas. In his disappointed announcement of the cancellation, AG Jackley acknowledges the logic that should have precluded his wasteful rush appeal in the first place:

Based upon the oral argument at the U.S. Supreme Court, it appears the Supreme Court may well decide the issues that South Dakota and the other states have appealed.  In the event there are any issues left to be decided, the Eighth Circuit will still have the ability to consider the pending cases…. It remains my position that the decision whether South Dakota should permit or recognize same sex marriages is a question for our citizens and state legislature, not the federal courts [Attorney General Marty Jackley, press release, 2015.04.29].

I am happy that neither Jackley nor the plaintiffs need to make the long trip to Omaha next week. Now let’s all wait for the Supreme Court to do its job.

Related Reading:

  • SCOTUSBlog offers two round-ups—Tuesday and Wednesday—of commentary on Tuesday’s oral arguments before the Supreme Court in Obergefell v. Hodges.
  • The Supreme Court has posted its transcript of Tuesday’s oral arguments.
  • AG Jackley threw South Dakota on the record in Obergefell v. Hodges with 14 other states in an amicus brief urging the court to rule in favor of discrimination and states’ rights—oh, excuse me. The proper term in Jackley’s argument is “democratic deliberation.” The amicus brief contends that same-sex marriage is a novelty, non-existent in the states twelve years ago, that each state should be able to debate and regulate as it sees fit. Apparently, Jackley believes that if a new violation of the Constitution is brought to the Supreme Court’s attention, the justices cannot act on that injustice until the states have debated it for much longer than a decade.


  1. Paul Seamans 2015-05-01 06:40

    I’ll bet a person could find the arguments of AG’s from the southern states on civil rights in the 60’s and they would be very similar to Marty Jackley’s on this issue.

  2. Travis 2015-05-01 06:59

    Let’s not forget the southern states Pre-Civil War argued that the legality of slavery should be decided at the state level as well. I don’t think we can come up with a Three-Fifths Compromise for marriage equality. By the way, I’m curious how many opponents that rail on about the sanctity of marriage have been divorced or committed adultery? Let he who has no sin cast the first stone…

  3. Loren 2015-05-02 12:57

    Hey, how can Jackley be elected our next Governor if we won’t let him play to the Rep. base??

  4. leslie 2015-05-02 18:53

    yup, there’s ag jackley along with the republican national attorneys general association with a lock on 30 some states, chaired by republican golden boy missouri ag scott Pruitt. these guys are all about big money, big careers, protecting energy companys, and who ever else pays the most to lobby for their considerable legal association horsepower.

    this is a new major foundational element of the GOP 2015 strategy.

    attorneys general band together to operate like a large national law firm, has been used to back lawsuits and other challenges against the Obama administration on environmental issues, the Affordable Care Act and securities regulation. The most recent target is the president’s executive action on immigration.

  5. mike from iowa 2015-05-02 19:31

    Would have been funnier if they had just cuffed Jackley up alongside his head. Wisconsin abolished the public commission that protected rate payers from energy companies. A small fee from the rate payer’s bills and some money from the state allowed the public to hire attorneys to fight korporate pigs. That has now been taken away from citizens. Now each citizen has to fund their own attorneys to lose in Wisconsin’s ever farther right wingnut court system.

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