Eighth Circuit Applies Obergefell to South Dakota; Jackley Can’t Admit He’s Wrong

Last updated on 2015-08-20

Judge Karen Schreier was right, says the Eighth Circuit Court of Appeals today as it finally throws South Dakota’s unconstitutional ban on gay marriage and all of Attorney General Marty Jackley’s bad arguments in the trash.

The five-page ruling on Rosenbrahn v. Daugaard explains that South Dakota can’t constitutionally ban same-sex marriage any more than can Ohio, Michigan, Kentucky, and Tennessee, the states who lost Obergefell v. Hodges in June. In addition to that obvious conclusion, the appeals court also rules against AG Jackley’s sneaky motion to moot the case and vacate Judge Schreier’s ruling. The ruling says (1) the Supreme Court ruling did not address every contested issue in Obergefell v. Hodges, and (2) the state’s promise of compliance with that ruling does not moot the case or justify erasing Judge Schreier’s ruling against South Dakota from the record. That finding means the plaintiffs have really, truly prevailed and can put South Dakota on the hook for their attorney fees, which is one big reason AG insisted on dragging this case out.

In his press release, AG Jackley tries to make it sound like everything is fine:

Today’s ruling combined with State and Local authorities immediate compliance with the U.S. Supreme Court’s directive, would appear to end the need for further federal oversight. As clearly recognized by the 8th Circuit Court of Appeals, South Dakota’s assurances of compliance with the U.S. Supreme Court directive may impact the necessity of continued injunctive relief. Local and State authorities have treated the U.S. Supreme Court decision on same-sex marriage effective on the day of the decision and forty-nine same-sex marriage licenses have been issued peacefully and without incident [Attorney General Marty Jackley, press release, 2015.08.11].

End the need for federal oversight? How does that line even make sense in response to losing a federal court case, other than to blow the dog whistle for the arch-conservatives he wants to elect him Governor in 2018? I would say that as long as our Attorney General and local officials keep looking for ways to cling to their discrimination and reject the authority of the United States Supreme Court, the federal judiciary and executive branches need to keep a close eye on whether South Dakota is truly protecting the civil rights of all citizens.

Attorney General Jackley makes my point by going on the radio to perpetuate his wrong-headed argument that county officials can refuse to issue marriage licenses to couples of whom they disapprove, as long as they can find someone else on staff to process the request. I again urge the Attorney General to review the opinion of the Board of Professional Conduct of the Ohio Supreme Court, which finds that judges cannot square such discrimination with their oath to uphold the Constitution. Obergefell and Rosenbrahn do not maintain that half or a quarter or a hundredth of the state can discriminate against homosexuals. Those cases hold that the state may not so discriminate, and that applies to everyone who works for the state.

This final disposition of Rosenbrahn for the plaintiffs means the National Marriage Celebration at Mount Rushmore goes forward on Sunday, September 6 with all formal legal obstacles cleared away. Come celebrate your marriage with your fellow South Dakotans and fellow Americans!