U.S. Supreme Court

Today, in light of the Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the United States Court of Appeals for the Eighth Circuit affirmed a Madia Law victory in Rosenbrahn v. Daugaard, a historic case challenging the constitutionality of South Dakota’s bans on marriage equality for same-sex couples.

On January 12, 2015, the United States District Court for the District of South Dakota entered judgment in favor of six same-sex couples represented by Madia Law, declaring:

SDCL 25-1-1, SDCL 25-1-38, Article 21 § 9 of the South Dakota Constitution, and any other provision of state law that precludes people from marrying or refuses to recognize an existing marriage, solely because the individuals are of the same gender are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES, 2015 WL 144567, at *11 (D.S.D. Jan. 12, 2015). The court further ordered that, “defendants are enjoined from enforcing those laws or otherwise declining to issue a marriage license solely because the applicants are of the same gender.” Id.

The court also ordered that, “the effects of [the] judgment will be stayed until the judgment is final.” Id. The State defendants appealed to the 8th Circuit. While the appeal was pending, the Supreme Court decided Obergefell v. Hodges, a decision that should have spelled immediate victory for the plaintiffs in the South Dakota case. Instead, the South Dakota Attorney General chose to continue being an impediment to equality, unnecessarily delaying the inevitable and continuing to drive up the costs of the litigation by making a motion at the 8th Circuit that sought to rewrite the history books, pretending as if South Dakota never violated the Constitution.

Today, the 8th Circuit rejected that argument, allowing the district court judgment invalidating South Dakota’s marriage bans to take permanent effect. This is important. The district court ordered,“defendants are enjoined from enforcing those laws or otherwise declining to issue a marriage license solely because the applicants are of the same gender.” 2015 WL 144567, at *11.

But on July 2, 2015, the Attorney General publicly stated that clerks may refuse to issue marriage licenses to same-sex couples for religious reasons. As the district court’s order makes clear, the Attorney General is wrong. Clerks who treat same-sex couples differently than different-sex couples—for any reason whatsoever—violate the Constitution. Any clerk who does so will face a lawsuit.


Someone forwarded this to me and I loved it – great visual representation and acknowledgement of all the hard work that people put into this cause prior to the Supreme Court’s decision.  Enjoy.


In a nearly unanimous Supreme Court decision released yesterday, the Supreme Court dealt a blow to clothing retailer Abercrombie & Fitch for refusing to hire a Muslim job applicant because she wore a hijab to a 2008 job interview.

Minnesota Religious Discrimination Employment Attorneys

While Abercrombie won at the Tenth Circuit Court of Appeals, the Supreme Court reversed that opinion and the accompanying notion that “actual knowledge” of a necessary religious accommodation is required to find discrimination. The Court explained, “an applicant need only show that his need for [a religious] accommodation was a motivating factor in the employer’s decision.” Because Abercrombie had a “Look Policy” in place that prohibited black clothing and “caps,” the Court explained that it ran afoul of Title VII‘s prohibition on religious discrimination even without more than an “unsubstantiated suspicion” that religious accommodation would be necessary.

Having clarified the legal test, the Supreme Court remanded the case for further consideration to determine whether in fact Abercrombie discriminated against the plaintiff.

Madia Law represents victims of religious discrimination in the workplace. State and federal law in Minnesota and Wisconsin prohibit employers from choosing not to hire someone based on the person’s religious beliefs (or perceived religious beliefs).


Historic, unprecedented, monumental… no single word fully encapsulates the magnitude and impact the past three years have had on marriage rights for gay and lesbian Americans. By the end of next month, the Supreme Court will decide whether gay and lesbians have a constitutional right to marry and whether states can permissibly deny them of that right by refusing to issue them marriage licenses and/or denying them recognition of out-of-state marriages. How did we get to this point? What is left for the Supreme Court to decide? What will be the impacts of the Supreme Court’s pending decision? To answer these questions, let’s reflect on the legal history related to marriage and gay rights that brings us to where we stand today, and may give us insight into where we’re headed next.

Twin Cities Discrimination Attorneys


In 1967, the Supreme Court decided Loving v. Virginia, 388 U.S. 1, a case in which police conducted a nighttime raid of the home of Mildred and Richard Loving. The Lovings, an interracial couple married in Washington D.C. in 1958, were arrested for living together as husband and wife—violating Virginia’s anti-miscegenation law. The Supreme Court unanimously struck down the law, writing that marriage is a fundamental civil right and that depriving that right on the basis of a race was not permissible. Id. at 12.

In 1970, a gay couple from the University of Minnesota—Richard Baker and James McConnell—applied for a marriage license in Hennepin County. After being denied, they sued for violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Among their claims, the plaintiffs argued that the law impermissibly classified on the basis of gender. The trial court dismissed their case, which the Minnesota Supreme Court upheld in 1971. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The couple then appealed to the U.S. Supreme Court. Until 1988, it was mandatory for the Court to accept such appeals from state supreme courts. Thus, although a denial of certiorari is not usually an endorsement of a lower court’s decision, in the case of Baker, the Supreme Court’s one sentence opinion that, “[t]he appeal is dismissed for want of a substantial federal question[,]” Baker v. Nelson, 409 U.S. 810 (1972), was—at least at that time—considered to be a binding decision on the merits.

Just one year after Baker was decided, in 1973, the Supreme Court elevated the level of constitutional scrutiny for laws that classify based on gender, concluding that such laws must, like race and national origin, be subjected to heightened judicial scrutiny. Frontiero v. Richardson, 411 U.S. 677, 688 (1973).

In 1974, the State of Wisconsin denied Roger Redhail a marriage license because he was in arrears on court ordered child support after having a child while in high school. Redhail filed a class action suit against a Milwaukee County official, which found its way to a Supreme Court opinion in 1978. Justice Marshall cited and reiterated the Court’s position in Loving, writing that marriage is a fundamental right, the deprivation of which requires strict scrutiny. Zablocki v. Redhail, 434 U.S. 374 (1978). Nine years later, the Supreme Court again recognized the fundamental right to marry in Turner v. Safley, 482 U.S. 78 (1987) (striking down a law barring prison inmates from marrying).

In 1986, the Supreme Court upheld a Georgia law that criminalized gay sex. Chief Justice Warren Burger wrote in concurrence that ancient roots prohibited homosexual sex, calling it an infamous crime against nature that is worse than rape. He argued that framing such laws as fundamental rights violations would be to “cast aside millennia of moral teaching.” Bowers v. Hardwick, 478 U.S. 186 (1986).

In 1992, a 53% majority of Colorado voters approved a ballot measure that amended the Colorado Constitution. The amendment prohibited every county, city, and town within Colorado from protecting gay and lesbian individuals from discrimination. In 1996, the Supreme Court reviewed the amendment in Romer v. Evans, 517 U.S. 620 (1996). In the Court’s opinion, Justice Kennedy did not explicitly state which level of constitutional scrutiny the Court was applying, but wrote that, “laws of the kind… raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,” and concluded that the ballot measure was born of a “bare… desire to harm a politically unpopular group.” Id. at 634. The Court added, “[i]f the constitutional conception of equal protection of the laws means anything, it must at the very least mean that a bare… desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Id. (emphasis in original) (internal citations omitted).

Then, in the mid-1990’s, following a Hawaii Supreme Court decision that raised the prospect of same-sex couples being allowed to marry,[1] both the federal government and states across the country began enacting statutory bans explicitly excluding same-sex couples from marrying and/or recognizing those marriages. Like the myriad state laws passed at that time, the federal Defense of Marriage Act, passed by Congress in 1996, was also motivated by a desire to specifically avoid recognizing marriages of same-sex couples. This represented a stark departure from both the federal government’s and most states’ longstanding practice of recognizing valid marriages from any of the states. This rule—known as the “place of celebration rule”—is recognized in nearly every state and is a defining element of our federal system and American family law.[2] For example, some states will allow cousins to marry while many will not; yet, even in states that don’t grant such marriages, those states will usually recognize out-of-state marriages as long as they are valid in the conferring state.[3] That rule usually applies even when a couple leaves a state to marry in order to avoid a prohibition under their home-state marriage laws.[4]

In 1998, Alaska became the first state in the union to go beyond a statutory ban on marriage for same-sex couples, also passing a ballot measure that constitutionally restricted marriage to one man and one woman. Despite—and perhaps because of—the Supreme Court’s decision in Romer, gay and lesbian Americans were being targeted for disparate governmental treatment like never before. That same year, officials in Texas criminally prosecuted a gay male couple for having sex in the confines of a private bedroom. Texas’ sodomy laws, like those in 13 other states, explicitly prohibited homosexual acts, effectively making homosexuality illegal. See generally Lawrence v. Texas, 539 U.S. 558 (2003).

In 2003, the Supreme Court struck down those laws—and overruled its Bowers decision in Lawrence, concluding that the two Texans, like all individuals, were free under the Constitution to engage in intimate sexual conduct “in the confines of their homes and their own private lives and still retain their dignity as free persons.” 539 U.S. at 567. The Court found that “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Id. Further, while the Court held that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice[.]” Id. at 577.

Also in 2003, the Massachusetts Supreme Court became the first court in the country to strike down a state’s marriage ban and require the state to marry same-sex couples. Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003). The backlash was swift and widespread. Dozens of states began following Alaska’s lead and incorporating marriage bans into their constitutions in an effort to block state courts from overruling their statutory bans. By 2008, 29 states passed measures similar to Alaska at the polls, many barring not only marriages, but also prohibiting state recognition of any type of same-sex relationship. Nebraska was one such state. It was also the first to state to have its ban struck down in federal court.

Before he was overturned by the Eighth Circuit, U.S. District Court Judge Joseph Bataillon struck down Nebraska’s ban in a Romer-style equal protection case called Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). The plaintiffs argued that Nebraska’s constitutional amendment impermissibly “raise[d] an insurmountable political barrier to same-sex couples,” but they did not seek the right to marry. Id. at 865. The Eighth Circuit wrote that, in order to determine the appropriate level of scrutiny for classifications based on sexual orientation, “the most relevant precedents [were] murky,” Id. at 865–66 (emphasis added). Accordingly, the court tested Nebraska’s ban against the lowest level of constitutional scrutiny—the rational-basis test. Under that deferential standard, the Eighth Circuit upheld the amendment, writing that “laws limiting the state-recognized institution of marriage to heterosexual couples . . . do not violate the Constitution of the United States.” Id.

The Eighth Circuit wasn’t the only appellate court to struggle with the Supreme Court’s “murky” precedent on constitutional scrutiny for sexual orientation classifications. For example, in 2008, the Ninth Circuit reached a similar conclusion to the Bruning court in Witt v. Dep’t of Air Force, 527 F.3d 806, 821 (9th Cir. 2008), concluding that barring further pronouncement by the Supreme Court, it would apply rational basis review to equal protection claims involving classifications based on sexual orientation. Nevertheless, gay rights advocates doubled their efforts, focusing on engaging the public and winning hearts and minds by having conversations about love and fairness.

Recent Developments

Three years ago, in May 2012, President Obama declared his support for marriage equality. At the time, only six states allowed same-sex couples to marry, and the federal government refused to recognize those nuptials. In Minnesota, voters were debating what became the most expensive ballot initiative in our history, a measure that—had it been successful—would’ve made Minnesota the 31st state to constitutionally ban marriage for gay and lesbian couples. Minnesota became the first state in the nation to successfully block such an amendment at the ballot box.

Two years ago today, marriage equality advocates were anxiously awaiting decisions from the Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), a case challenging the constitutionality of the federal Defense of Marriage Act (“DOMA”), and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), a California case challenging the constitutionality of one of those state-level ballot measures (“Proposition 8”). Pundits heralded the lawsuits as two of the most important civil rights cases of our time, each having the potential to become landmark precedent.

As it turned out, Perry was mostly forgotten after the Supreme Court’s standing-based decision didn’t address whether states may deny marriage based on sexual orientation or gender.[5] The Court’s failure to reach the merits of the case was a disappointment for millions of gay Americans, including same-sex couples in the 37 states that, following the decision, still suffered marriage discrimination by their government and the resulting stigma that they were less equal than their neighbors.

Yet, despite Perry’s narrow results, the Supreme Court’s 2013 term was a win—a win for the same-sex couples in those 13 states that did have marriage equality, a win for gay and lesbians in general, a win for civil rights, and a win for the principles of equality, morality, and human dignity. This is because the Court’s decision in Windsor struck at the heart of DOMA, declaring—in no uncertain terms—that gay and lesbian relationships deserve dignity, due process, and equal protection. Justice Kennedy, writing for the Court, repeatedly emphasized that although states may generally define and regulate marriage, that such regulation, “of course, must respect the constitutional rights of persons.” 133 S. Ct. 2675, 2691. Thus, although Windsor didn’t explicitly decide whether states may block same-sex couples from marrying, it prompted marriage equality advocates to use its conspicuous tea leaves to light a fire.

Within one year of the decision, advocates challenged every state marriage ban and anti-recognition law in the country with at least one lawsuit. Since then, nearly every court to rule has held that Windsor’s logic requires invalidation of such laws. In numbers, that is 60+ rulings in over 40 different courts in every corner of the country, including the United States Courts of Appeals for the Tenth, Ninth, Seventh, and Fourth Circuits. In contrast, only one federal appellate court—the Sixth Circuit—and a handful of trial courts have upheld such bans.

When the Fourth, Seventh, Ninth, and Tenth Circuits struck down marriage bans and anti-recognition laws, most legal experts expected that the United States Supreme Court would review some or all of those decisions—particularly in light of the fact that all parties asked the Court to do so. But in September 2014, while visiting the University of Minnesota Law School, Justice Ginsburg hinted that the Court likely wouldn’t take the cases unless there was a circuit split. She reasoned that there was “no urgency” since the there wasn’t any disagreement. Sure enough, less than one month later, the Supreme Court denied cert. in the 10th, 7th, and 4th Circuit cases.

Pending Supreme Court Decision

Then, in November 2014, in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), the Sixth Circuit Court of Appeals overturned lower federal court decisions in Michigan, Kentucky, Tennessee, and Ohio, becoming the first and only federal appellate court, after Windsor, to uphold marriage bans and anti-recognition laws. This created the circuit split Justice Ginsburg was talking about, which explains why the Court granted cert. in the Sixth Circuit cases in January of this year.

Today, after less time has elapsed than it takes to complete law school, 31 more states have marriage equality than did in May 2012. As of the publishing of this article, the total stands at 37—a complete reversal in numbers from only two years ago. Although Minnesota is among the few states added to that tally by legislation, the majority were put there pursuant to judicial decree, and mostly within the past year. By the end of next month—most likely on June 29, the last day of the term—the Supreme Court will decide whether those courts have gotten it right.

Unlike Perry, there are no standing issues that may prevent the Court from reaching a decision on the merits. Among the matters the Court will decide, look for the majority opinion to discuss: 1) whether its summary dismissal in Baker is still valid precedent; 2) whether same-sex couples share in the fundamental right to marry that the Court discussed in Loving, Zablocki, Turner, and other cases; 3) whether the Court considers the contested marriage laws to classify on the basis of gender—meaning that they must be subject to heightened constitutional scrutiny; 4) whether laws classifying on the basis of sexual orientation must be subject to heightened scrutiny; 5) whether principles of federalism (such as the Tenth Amendment and the domestic relations exception to federal jurisdiction) can legitimate the contested marriage laws; 6) whether a stated intent to maintain marriage as between a man and a woman can be considered animus evidence sufficient to strike down the ban; and 7) whether any rationale offered by the States, such as promoting procreation or deferring to the political process, can legitimate the challenged marriage laws.

In deciding question 1—whether its summary dismissal in Baker is still valid precedent—look to see if the Court also addresses question 3—whether the contested marriage laws classify on the basis of gender and are thus subject to heightened constitutional scrutiny. During oral arguments in Perry, Justice Kennedy stated that it was an interesting question, one that he had been wrestling with. Justice Ginsburg also indicated that Baker was from a different era, one that preceded heightened scrutiny for gender classifications.

On question 2—whether same-sex couples share in the fundamental right to marry—look for the Court to discuss its historical treatment of marriage and to also discuss question 5—whether principles of federalism can legitimate the contested marriage laws. The Supreme Court has articulated the right to marry no less than 14 times, describing it as a right associated with other fundamental rights, including privacy and association. While the Windsor opinion discusses the States’ historical regulation of marriage at length, principles of federalism have not previously stopped the Court from striking down state marriage laws that violate the Constitution. Thus, if the Court answers question 2 affirmatively, simultaneously doing so with question 5 would be difficult.

Regarding question 7—whether any rationale offered by the States, such as promoting procreation or deferring to the political process, can legitimate the challenged marriage laws—look for the Supreme Court to specifically address the Sixth Circuit’s assertion that deference to the political process constitutes a rational basis to uphold the contested marriage bans. The Supreme Court already dismissed the other rationales in Windsor.

While the Court’s precedent on marriage and gay rights may offer some strong clues into its likely opinion on the issue of marriage for gay and lesbian couples, perhaps the most anticipated answers for those now anxiously awaiting the Supreme Court’s pending decision is with regard to questions 4 and 6. With regard to 4—whether laws classifying on the basis of sexual orientation must be subject to heightened scrutiny, although the Eighth and Ninth Circuits have both previously ruled that the Supreme Court’s precedent only requires rational basis level review for laws that target gay and lesbians, the Supreme Court’s opinion in Windsor suggests otherwise. Indeed, the Ninth Circuit recently reversed its 2008 Witt opinion, concluding that Windsor was “dispositive of the question of the appropriate level of scrutiny” for sexual orientation classifications and requires heightened scrutiny. SmithKline v. Abbott Labs, 740 F.3d 471, 480–481 (9th Cir. 2014).

With regard to question 6—whether a stated interest in maintaining the “traditional” heterosexual definition of marriage is evidence of animus sufficient to strike down the laws—there is some thought that the Court could answer this affirmatively and avoid answering questions 4 and 7 altogether. The Court’s developing animus doctrine is something that University of Minnesota Law Professor Dale Carpenter has written about at length.[6] Essentially, the Court’s precedent seems to indicate that although a finding of animus toward a particular class of people is not necessary to strike down a law, a finding of animus is in fact sufficient to render the law unconstitutional. This doctrine is not part of the Court’s traditional equal protection analysis.

The significance of the answers from the Supreme Court on questions 4 and 6 extends beyond the issue of marriage equality. Across the country—most recently and most significantly in Indiana—states are passing laws meant to chip away at the rights of gay and lesbian citizens. In some cases, the laws don’t explicitly classify on the basis of sexual orientation but are nonetheless rooted in allowing discrimination on the basis of sexual orientation. Such laws, much like DOMA and the 13 remaining state marriage bans, inflict serious harms on gay and lesbian persons and their children, depriving them of hundreds of rights and protections, and stigmatizing them as inferior and unworthy of respect. Allowing the laws to stand would burden the lives of gay and lesbians persons “by reason of government decree, in visible and public ways . . . from the mundane to the profound.” Windsor, 133 S. Ct. at 2694.

Like the Supreme Court’s previous cases involving gay and lesbian persons, its pending decision will have long-term implications. To the extent that the Court answers the above-posited questions, with the above-discussed history in mind, come June 29, 2015, we may likely have some insight into the next legal steps for the gay civil rights movement.


[1] Baehr v. Lewin, 852 P.2d 44 (Haw. 1993).

[2] Garcia v. Garcia, 127 N.W. 586, 589 (S.D. 1910). Indeed, the “policy of the civilized world[] is to sustain marriages, not to upset them.” Madewell v. United States, 84 F. Supp. 329, 332 (E.D. Tenn. 1949); see also In re Lenherr’s Estate, 314 A.2d 255, 258 (Pa. 1974) (“In an age of widespread travel and ease of mobility, it would create inordinate confusion and defy the reasonable expectations of citizens whose marriage is valid in one state to hold that marriage invalid elsewhere.”).

[3] e.g., Garcia, 127 N.W at. 587-589 (recognizing a marriage between first cousins that would have been prohibited and void if the parties had attempted to marry in South Dakota).

[4] Id.

[5] Although the Perry decision didn’t reach the merits, it did add to the Supreme Court’s evolving standing doctrine and effectively brought marriage equality to California.

[6] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2424743


United States District Court

District of South Dakota 



Rosenbrahn, et al.,





    Daugaard, et al.,



    Case Type: Civil Rights / § 1983
    Case No. 14-CV-4081-KES








    On January 12, 2014, the Court entered judgment, declaring:

    SDCL 25-1-1, SDCL 25-1-38, Article 21 § 9 of the South Dakota Constitution, and any other provision of state law that precludes people from marrying or refuses to recognize an existing marriage, solely because the individuals are of the same gender are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

    Rosenbrahn v. Daugaard, No. 4:14-CV-04081-KES, 2015 WL 144567, at *11 (D.S.D. Jan. 12, 2015). The Court further ordered that, “defendants are enjoined from enforcing those laws or otherwise declining to issue a marriage license solely because the applicants are of the same gender.” Id.

    The Court, over Plaintiffs’ objections, also ordered that, “the effects of [the] judgment will be stayed until the judgment is final.” Id. While Plaintiffs believe they have already satisfied their obligations pursuant to Rule 8 of the Federal Rules of Appellate Procedure and could make the above-captioned motion at the Eighth Circuit Court of Appeals, they seek this Court’s reconsideration in light of recent decisions by the U.S. Supreme Court.

    In its Order granting Plaintiffs’ Motion for Summary Judgment, the Court did not consider that on December 20, 2014, the Supreme Court of the United States denied the State of Florida’s request for a stay of a preliminary injunction enjoining the enforcement of Florida’s exclusion of same-sex couples in marriage while the litigation and appeals process continue. See Armstrong v. Brenner, 135 S. Ct. 890 (2014).

    Nor did this Court, while discussing whether to stay judgment, take into account that on October 6, 2014, the United States Supreme Court denied certiorari in cases from the Fourth, Seventh, and Tenth Circuits, each of which had ruled in favor of same-sex couples’ constitutional freedom to marry, dissolving all previously-entered stays in those cases and allowing same-sex couples to begin marrying in those states. See Herbert v. Kitchen, 135 S. Ct. 265 (2014); Smith v. Bishop, 135 S. Ct. 271 (2014); Rainey v. Bostic, 135 S. Ct. 286 (2014). Since its denial of certiorari in those cases, and prior to this Court entering (and staying) judgment, the Supreme Court denied stays in every case in which a lower court struck down a state marriage ban; in each of those cases, the Supreme Court allowed lower court orders requiring states to issues marriage license to same-sex couples to take effect while appeals in those cases proceed. See: Wilson v. Condon, No. 14A533, 2014 WL 6474220 (U.S. Nov. 20, 2014) (South Carolina); Moser v. Marie, No. 14A503, 2014 WL 5847590 (U.S. Nov. 12, 2014) (Kansas); Otter v. Latta, No. 14A373, 2014 WL 5094190 (U.S. Oct. 10, 2014) (Idaho); Parnell v. Hamby, No. 14A413, 2014 WL 531181 (U.S. Oct. 17, 2014) (Alaska).

    Four days after this Court entered and stayed judgment in Plaintiffs’ favor, the Supreme Court granted petitions for writ of certiorari in four cases that raise the very same issues presented in this case—whether a State must allow same-sex couples to marry and whether a State must recognize such marriages performed in other jurisdictions. See DeBoer v. Synder, No. 14-571, 2015 WL 213650, at *1 (U.S. Jan. 16, 2015); Bourke v. Beshear, No. 14-574, 2015 WL 213651, at *1 (U.S. Jan. 16, 2015); Obergefell v. Hodges, No. 14-556, 2015 WL 213646, at *1 (U.S. Jan. 16, 2015); Tanco v. Haslam, No. 14-562, 2015 WL 213648, at *1 (U.S. Jan. 16, 2015).

    Most significantly, yesterday—February 9, 2015—the Supreme Court denied a request by the State of Alabama to stay the judgment of the Untied States District Court for the Southern District of Alabama, which had, on January 23, 2015, held that Alabama’s exclusion of same-sex couples from marriage violates the Fourteenth Amendment. Strange v. Searcy, No. 14A840, 2015 WL 505563, at *1 (U.S. Feb. 9, 2015).

    Since October 2014, the Supreme Court has repeatedly and consistently denied motions to stay lower court decisions that struck down state bans on marriage equality as unconstitutional. Strange, 2015 WL 505563, at *1. The Supreme Court’s order in Strange indicates that the grant of review in DeBoer, et al, has not changed the Court’s conclusions that such stays are not necessary. To the extent that this Court’s entry of stay was premised on the fact that the Eighth Circuit Court of Appeals and/or the U.S. Supreme Court had not yet ruled on the constitutionality of state marriage equality bans, the Supreme Court’s post-certiorari refusal to grant a stay in the Alabama case demonstrates that the continued stay of the judgment in this matter is no longer appropriate.

    When a party seeks a stay pending appeal, the court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v. Vill of Gambell, 480 U.S. 531, 542 (1987). Here, while Defendants have not shown that South Dakota would suffer any harm in the absence of a stay, the challenged laws are continuing to cause serious and irreparable harm to Plaintiffs and other same-sex couples and their children every day that the bans remain in effect. In addition, the stay on judgment is causing continued insecurity, vulnerability, and stigma. The purpose of marriage is, in large part, to provide security and protection in the face of anticipated and unanticipated hardships and crises—e.g., in the face of death, aging, illness, accidents, incapacity, and the vicissitudes of life. Indeed, Plaintiffs in this case have dealt with such issues during the pendency of this litigation. This harm is not speculative, but immediate and real.

    This Court has recognized that the denial of marriage to Plaintiffs and other loving and committed same-sex couples is the deprivation of fundamental rights guaranteed by the United States Constitution. Rosenbrahn, 2015 WL 144567, at *10. Under well-settled law, any deprivation of constitutional rights, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

    Defendants have not demonstrated a likelihood of success on the merits and have offered no evidence that they will suffer any harm—much less irreparable harm—if this Court’s judgment is in effect while the appeal is pending. Defendants have identified no meaningful burden to the State of South Dakota or its agencies or political subdivisions that would arise if the State is required to issue marriage license to same-sex couples and recognize such marriages performed in other jurisdictions while the appeal is pending in this matter.

    Defendants cannot argue that enjoining the enforcement of a state law is in itself a form of irreparable injury to the State. That is equally true of any case in which a court permanently enjoins a state law because the law is unconstitutional. Such arguments, taken to their conclusion, would mean that a permanent injunction can never be granted in a constitutional challenge without being stayed pending appeal. That manifestly is not the law. See Nken v. Holder, 556 U.S. 418, 433 (2009) (“A stay is not a matter of right.”)

    It cannot be argued that in the absence of a stay, South Dakota’s issuance of marriage licenses to same-sex couples would result in uncertainty concerning the validity of those marriages. There will be no uncertainty, as the law is clear that marriages validly entered into pursuant to a district court’s order while appeal is pending remain valid regardless of the appeals’ outcome. See Caspar v. Snyder, No. 14-CV-11499, __ F. Supp. 3d __, 2015 WL 224741, *27; Evans v. Utah, No. 2:14-CV-55-DAK, 2014 WL 2048343, at *17 (D. Utah May 19, 2014).

    While this Court (in its Order dated January 12, 2015) discussed the factors traditionally weighed to determine whether a stay on judgment should entered, it did not have the benefit of the Supreme Court’s most recent action in Strange. With that backdrop, it is fundamentally unfair and logically inconsistent that same-sex couples in Florida and Alabama (among other states) can marry and have their marriages recognized while the Supreme Court considers the very issues decided by this Court, but families in South Dakota must continue to suffer irreparable harm and constitutional violation. Thus, this Court’s conclusion that the public interest weighs in favor of a stay on judgment must be reconsidered and the stay on judgment immediately vacated. “It is always in the public interest to prevent the violation of a party’s constitutional rights.” G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).

    The Plaintiffs and same-sex couples across South Dakota have waited years—in many cases, decades—to be treated equally in accordance with the Constitution. They should not have to one more day. Accordingly, Plaintiffs respectfully request action on this Motion by this Court within one week.

    Dated: February 10, 2015.

    Madia Law LLC

    [signed by hand]
    Joshua A. Newville
    Admitted pro hac vice
    345 Union Plaza
    333 Washington Avenue North
    Minneapolis, Minnesota 55401
    Phone: (612) 349-2743
    Fax: (612) 235-3357

    Burd and Voigt Law Office

    /s/Debra Voigt                  .
    Debra Voigt
    SD Bar No. 2473
    601 S. Cliff Ave, Suite A
    Sioux Falls, SD 57103
    Phone: (605) 332-4351
    Fax: (605) 334-6844


    (Sioux Falls, SD)– On January 12, 2015, on behalf of six same-sex couples, Madia Law won a historic civil rights victory in a constitutional challenge to South Dakota’s ban on marriage equality. From the New York Times and the Associated Press:

    SIOUX FALLS, S.D. — A federal judge on Monday declared South Dakota’s [bans on marriage equality] unconstitutional, but marriage licenses won’t be immediately issued because the ruling was put on hold pending a potential appeal.

    U.S. District Judge Karen Schreier sided in favor of the six couples who filed the lawsuit in May in Sioux Falls. The lawsuit challenges a 1996 state law and a voter-approved 2006 constitutional amendment that ban gay marriage.

    “Plaintiffs have a fundamental right to marry,” Schreier wrote. “South Dakota law deprives them of that right solely because they are same-sex couples and without sufficient justification.”

    Attorney General Marty Jackley on Monday said the state will appeal the case to the 8th U.S. Circuit Court of Appeals, a conservative-leaning federal appeals court that in 2006 affirmed Nebraska’s right to ban same-sex marriages.

    “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,” Jackley said.

    He said he’s obligated by law to defend both the state constitution and state statutes.

    Two other states — Arkansas and Missouri — already have appealed similar federal district court rulings to the 8th Circuit. This court is generally considered more conservative than others, said Adam Romero, senior counsel in the Williams Institute at the UCLA School of Law. However, Romero warned, judges “from all ideological perspectives” have tended to agree that state marriage bans are unconstitutional since the U.S. Supreme Court decision to strike down the Defense of Marriage Act in 2013.

    “While it is impossible to predict what the court will ultimately do, given the large number of judges who have struck down same-sex marriage bans, we can assume that the 8th Circuit will give the marriage bans in this circuit a very, very close scrutiny,” Romero said.

    The U.S. Supreme Court again is considering whether to hear a gay marriage case, and more appeals court rulings — especially if they conflict — could increase the likelihood the justices will do so.

    In November, the 6th U.S. Circuit Court of Appeals based in Cincinnati became the first appellate court to recently uphold state bans on same-sex marriage. Plaintiffs from Kentucky, Michigan, Ohio and Tennessee are asking the Supreme Court to reverse that decision. Four other appeals courts — based in Chicago, Denver, San Francisco and Richmond, Virginia — have ruled in favor of gay and lesbian couples. Arguments over bans in three Southern states were held last week before a New Orleans-based appellate court.

    Romero said that the more cases that are pending at the 8th Circuit will only increase the pressure on that court to issue its ruling. But the court could put the cases on hold if the Supreme Court decides to take on the issue.

    Presently, 36 states and the District of Columbia allow same-sex couples to marry, nearly twice as many as just three months ago.

    The South Dakota couples’ attorney, Josh Newville, said Monday’s developments represent the last opportunity for the state’s “elected officials to be on the right side of history” by not appealing Schreier’s decision.

    “I would say that Attorney General Jackley needs to consider very seriously the amount of money that he’s pouring into this lawsuit on behalf of the state to keep a discriminatory law in place,” Newville said.

    Five of the couples have already married in either Iowa, Connecticut or Minnesota. Nancy Rosenbrahn, of Rapid City, married her longtime partner in April in Minneapolis.

    “On one hand, this is like the best present ever,” Rosenbrahn said of the decision Monday. “On the other hand, you go back and you say ‘Well, yeah, it should be a yes,’ because we are no different than anybody else. There is no reason to say we can’t get married. There is no valid reason to do that anymore.”


    Madia Law 

    Attorney Joshua Newville
    office: 612.349.2743
    cell: 651.210.7135


    (Sioux Falls, SD, Nov. 14, 2014)—South Dakota’s marriage equality lawsuit is moving forward after United States Judge Karen Schreier rejected the State’s motion for the case to be dismissed on Friday.

    The Court heard arguments in Rosenbrahn v. Daugaard on October 17 in Sioux Falls. The Attorney General’s Office argued that a 2006 8th Circuit Court of Appeals case required dismissal. Plaintiffs’ attorney Joshua Newville argued that case isn’t on point and that the controlling decision is United States v. Windsor, the 2013 Supreme Court case that struck down the federal Defense of Marriage Act.

    In a 28-page opinion, issued Friday afternoon, Judge Schreier agreed with the plaintiffs, writing, “Given the subsequent developments recognized almost uniformly by federal courts following the Supreme Court’s decision in Windsor, Baker is no longer binding authority. Although Bruning explained that sexual orientation is not a suspect class, it did not address whether marriage is a fundamental right. Thus, those cases do not foreclose relief on plaintiffs’ due process and equal protection claims.”

    The Court will now consider the legitimacy of the marriage bans. Judge Schreier ordered state officials to respond to the plaintiffs’ motion for summary judgment within ten days. The State must explain why its refusal to wed same-sex couples and its refusal to recognize out-of-state marriages of same-sex couples do not violate U.S. Constitution guarantees of due process and equal protection.

    “Every reason the State offers to support these discriminatory laws has already been wholly rejected by the vast majority of courts to consider this issue,” said Newville. “The Supreme Court’s decision to let stand four recent appellate rulings striking down similar marriage bans also bolsters our case. The days of South Dakota proudly discriminating against these families are numbered,” he added.

    The plaintiffs filed their motion for summary judgment in early July. Debra Voigt, one of the lawyers for the couples, said, “We are all very happy this case is moving forward and are encouraged by the Court’s ruling today. We are optimistic that this is one step closer to marriage equality here in South Dakota.”

    The six plaintiff families are from across the state and include veterans, nurses, a stay-at-home mom, a truck driver, a couple who’s been together 30 years, and couples with children and grandchildren. “The law requires South Dakota to treat these families equally and with same dignity and respect it gives families with different-sex couples,” said Newville.

    Plaintiff Clay Schweitzer of Rapid City said, “My husband Jeremy [Coller] and I were both born and raised in South Dakota. We love it here. South Dakota is where we met, were we have built our lives together, and where Jeremy accepted my proposal in the Black Hills. We look forward to the day when South Dakota treats our family equally to all others.”

    While the Court dismissed Plaintiffs’ right-to-travel claim, Newville explained: “We believe that South Dakota’s discriminatory marriage scheme violates the law in a number of ways, including an unconstitutional infringement on the right to relocate within the United States. While the Court disagreed with our reasoning on that claim, the Judge did agree with the over 50 other courts that ultimately ruled in favor of marriage equality in the last 15 months that these couples’ have presented valid equal protection and due process claims.”

    The couples are represented by four attorneys:

    • Lead counsel Joshua Newville of the Minneapolis firm Madia Law LLC. Newville is the civil rights attorney who filed the lawsuit on May 22, 2014. He also represents seven families in a similar challenge to North Dakota’s marriage equality bans, which he filed on June 6, 2014.
    • South Dakota attorney Debra Voigt of Burd and Voigt Law Offices in Sioux Falls. Voigt is an active member of her community and has practiced family law in South Dakota for nearly 20 years.
    • National Center for Lesbian Rights attorneys Shannon Minter and Christopher Stoll. NCLR, a LGBT advocacy organization based in San Francisco, has been instrumental in the national fight for marriage equality, including the 10th Circuit Idaho case that was the first in the country after Windsor to have marriage equality upheld by a federal appellate court. Minter and Stoll are also working with Newville on the North Dakota case.


    In August 2012, I wrote about the problem with the City of Minneapolis dispensing with civilian review of police officers’ conduct. That year, the Minneapolis Police officers’ unionVelma Korbel and Susan Segal collectively took a nail gun to the coffin of the now-defunct Civilian Review Authority.


    Over two years later, Minneapolis Mayor Betsy Hodges penned an open letter acknowledging that Minneapolis has some bad police officers and that there is a strained relationship between Minneapolis police and parts of the community. Mayor Hodges also reiterated her commitment to civilian review and police officer accountability in general. In doing so, she mentioned the need for the culture of the Minneapolis Police Department to change, which I wholeheartedly agree with. (For example, this summer,  I spoke with watchdog.org about the militarization of police and the effect it can have on the culture of a police department.)

    In the end, Mayor Hodges proposed several things to establish such a culture changes, including the use of body cameras by Minneapolis Police officers. Use of body cameras by those  we give a badge and a gun and entrust to protect us should be celebrated as advancements in both technology and accountability. Body cameras protect the majority of police officers, who have hard jobs but carry out their duties with integrity and professionalism. They also protect civilians who, quite frankly, are too often victims of illegal conduct by bad cops.

    Unfortunately, some police officers don’t like the use of technology that helps ensure such accountability. Last week, in what amounts to transparent retaliation against Mayor Hodges for her extremely reasonable position, officers of the Minneapolis Police Department sent a photo to KSTP News of Mayor Hodges posing with a North Minneapolis get-out-the-vote volunteer. The officers declared that Mayor Hodges, who was pointing at the volunteer, was flashing a “known gang sign.” The nation collectively exhaled. 

    #Pointergate–as the scandal has come to be known–barely begins to highlight the significant barrier police unions have become to police officer accountability. The true power of these unions is demonstrated by their consistent and often successful defense of some truly bad cops. Officers like the Metro Gang Strike ForceSherry Appledorn & Joe WillBeating of Derryl JenkinsShooting Death of Dominic Felder deserve to be pushed out of the police department before their behavior and attitudes result in such significant civil rights violations, not protected by their peers out of blind allegiance. Ultimately, more so than #pointergate, the unions’ successful lobbying to gut the Civilian Review Authority demonstrates why it is a real barrier to the public’s effort to hold bad police officers accountable.

    Litigation cannot be the only check on bad cops’ conduct. Madia Law fully supports Mayor Hodges’ position on officer accountability and police-community relations. It is time to reverse the trend. Transparency is better for both police officers and citizens.


    Today, the United States Supreme Court denied to review opinions issued by three appellate courts that declared bans on same-sex marriage unconstitutional. The practical effect of the order denying review is that, after the dust settles, 11 additional states will have marriage equality — bringing the total to 30 within the next few months.

    For couples living in states without marriage equality, today’s announcement is bittersweet. While the Supreme Court’s inaction is a positive in that it expands the number of states where discrimination in marriage based on sexual orientation is not legal, it means more waiting for those who live in other states.


    Many of the states without marriage equality also lack legislation that protects gay people from discrimination (for example, in housing and employment). Similarly, many of those states do not provide make it a hate crime to violently target a gay person for no other reason than that person’s sexuality.

    Until the Supreme Court (or, alternatively, every appellate court in the country) declares marriage equality to be the law of the land, litigation will continue.

    Madia Law is proud to represent thirteen same-sex couples in historic challenges to marriage equality bans in both South Dakota and North Dakota. For those couples, today’s events are a source of optimism about the eventual outcome of their cases. Madia Law will continue to fight on behalf of them and all gay and lesbians who are denied their rights and equal protection under the laws.

    KFGO: Attorney Joshua Newville on Supreme Court’s Decision on Same Sex Marriage


    Madia Law filed a motion for summary judgment Tuesday in the historic lawsuit challenging North Dakota’s ban on same-sex marriage. From the Guardian Newspaper:

    A lawyer filed a motion late Tuesday calling on a judge to rule on the legality of gay marriage in North Dakota, the last US state to face a challenge to its constitutional ban on same-sex unions.

    Attorney Joshua Newville, representing seven couples in the state, filed the motion for dismissal in the US district court in Fargo in a move that has been successfully used in other states wrestling with same-sex marriage bans. Other bans are currently being challenged in states including Colorado and Georgia.

    Newville’s original suit, filed in June, argues that the ban subjects same-sex couples seeking to marry to “an irreparable denial of their constitutional rights” and the state “will incur little to no burden in allowing same-sex couples to marry and in recognizing the lawful marriages of same-sex couples from other jurisdictions on the same terms as different-sex couples”.

    Earlier this month North Dakota solicitor general Doug Bahr called for Newville’s case to be dismissed arguing that states have the right to define and regulate marriage.

    Newville, a lawyer with the Minneapolis-based firm Madia Law, said: “We are seeking an order from a district judge that declares marriage equality the law of the land in North Dakota.”

    North Dakota is the final state to face a challenge to a same-sex marriage ban. The legal case comes after a series of local victories for marriage equality proponents across the US that is putting pressure on the US supreme court to rule once more on gay marriage.

    “We all agree that North Dakota denies loving, committed same-sex couples recognition of their marriages. That is not in dispute,” said Newville. “This is a constitutional issue and North Dakota is in violation of the constitution by refusing to marry couples and to recognise marriages from other states and jurisdictions.”

    Celeste Carlson Allebach who, with her wife Amber, is one of the plaintiffs in the case said: “We’re very excited with this filing. We’re optimistic and hope to get a ruling before the birth of our coming child so that our family will be recognized as equal under the eyes of North Dakota law and both of us can be listed as parents on our child’s birth certificate.”

    Last June the highest US court ruled that married same-sex couples were entitled to federal benefits and effectively ended a ban on gay marriage in California that had been overturned by a lower court. In the wake of those decisions courts in more than a dozen states have invalidated bans on same-sex marriage while others have partially invalidated their rules to recognise marriages from outside the state.

    Carl Tobias, Williams professor of law at the University of Richmond said it now looked inevitable that the supreme court would have to revisit same-sex marriage.

    “Since the supreme court decision we have had a stream of rulings that have favoured plaintiffs and I think we are likely to see the same in North Dakota,” said Tobias.

    In August the 6th circuit court of appeals will hear arguments from gay marriage cases in Ohio, Kentucky, Michigan and Tennessee. The 5th circuit court of appeals, one of the most conservative courts representing Louisiana, Mississippi and Texas, is also expected to start hearing same-sex marriage cases soon, although no date has been set.

    “In all likelihood one of the courts could vote against same-sex marriage,” said Tobias. He said he had been surprised that so far decisions had been “so uniform and so fast. The decisions are building on one another and finding earlier arguments persuasive.”

    But he said a vote supporting a gay marriage ban was likely and that such a vote would likely lead to another supreme court hearing.


    June 2014: Madia Law Files Historic Marriage Equality Lawsuit in North Dakota

    June 8, 2014

    On June 6, 2014, Attorney Joshua Newville of Madia Law filed a lawsuit on behalf of seven same-sex couples in North Dakota. The lawsuit, Ramsay, et al. v. Dalrymple, et al., 14-CV-57, was filed in United States District Court in Fargo, North Dakota. Like Madia Law’s filing in South Dakota two weeks ago, the lawsuit against North […]

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    May 2014: Madia Law Files Historic Lawsuit Challenging South Dakota Marriage Equality Ban

    May 29, 2014

    On May 22, 2014, on behalf of twelve South Dakota residents, Madia Law Attorney Joshua Newville filed a federal lawsuit in United States District Court in Sioux Falls, South Dakota.  The lawsuit challenges the constitutionality of South Dakota’s statutory and constitutional bans on marriage equality.  The lawsuit was filed on behalf of Plaintiffs Jennie and […]

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    SCOTUS Kills DOMA and Prop 8; Sexual Orientation Discrimination Lives On

    June 28, 2013

    It’s been a busy week for employment law and civil rights.  The impact of the past week’s Supreme Court decisions on these two areas of law cannot be understated.  The Voting Rights Act was gutted, killing protections put in place to prevent discrimination at the ballot box.  The Civil Rights Act was substantially weakened, stripping […]

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    Supreme Court Guts Voting Rights Act

    June 25, 2013

    Today, the United States Supreme Court, in a 5-4 vote, struck down a key provision of the Voting Rights Act (“VRA”), which is considered by many to be the most important civil rights law to have ever been authored by Congress. In short: the Supreme Court gutted our country’s chief mechanism for preventing the South from […]

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    Supreme Court Weakens Title VII Protections

    June 24, 2013

    From Justice Ginsburg’s dissent in today’s Supreme Court Decision in Vance v. Ball State, which narrowly defined “supervisor” so as to limit employer liability (thus, employee protection) in workplace harassment cases: Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC’s Guidance, the Court embraces a position that relieves scores of […]

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    Prediction: National Marriage Equality Within 9 Months

    November 8, 2012

    Prior to Tuesday, six states (New York, Massachusetts, Vermont, New Hampshire, Connecticut, Iowa) and the District of Columbia had full marriage equality. As a result of Tuesday’s historic election, three additional states will now have marriage equality as well. Those states are Maine, Maryland, and Washington. (Technically, at the time of this post, Washington’s results […]

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    Evidence Law & Spousal Privilege (or Lack Thereof) for Gay and Lesbian Couples

    August 29, 2012

    The rights, privileges, and responsibilities afforded to married individuals in the United States are vast and varied.  As a matter of clear public policy, federal, state, and local governments grant married individuals everything from tax breaks to survivorship rights.  Gay and lesbian couples across the country have sought to be included in these benefits and […]

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    How Your Vote Affects Civil Rights Decisions

    June 29, 2012

    Andrew Cohen, contributing editor at The Atlantic, discusses in Supreme Court Review: The Tyranny of the Majority how four of this week’s controversial decisions from the nation’s highest Court were decided by one vote. Cohen’s piece is a solid reminder that, despite the complexity and nuance of constitutional law, it is the ballot box during […]

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    Lawsuit Alleges Old Boys’ Club in Young Industry

    June 12, 2012

    In Bradwell v. Illinois, (U.S. 1873), the Supreme Court declared that allowing a woman to practice law would surely destroy her femininity. According to the 8-1 decision, law is a man’s profession and  women simply aren’t well-suited for such rigor. While that may seem archaic, it wouldn’t be until 1971 that the Court invalidated such discrimination by […]

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    Supreme Court to Review Prop 8 and Sexual Orientation Discrimination

    June 7, 2012

    Tuesday’s decision in Perry v. Brown (the “Prop 8” case) means that roughly one year from now, it is likely that the United States Supreme Court will be giving its opinion on the now infamous 2008 ballot proposition that resulted in barring Californian gay couples from joining in marriage. Justice Anthony Kennedy will ultimately decide the fate of […]

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