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.

Background

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

(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.”

 

–FOR IMMEDIATE RELEASE—

(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.

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 Dakota officials is the first lawsuit in the state to challenge the state’s same-sex marriage ban. The lawsuit alleges the state’s ban on marrying same-sex couples and its refusal to recognize the marriages of other jurisdictions deprives gay and lesbians from their constitutionally-protected rights of equal protection, due process, and right to travel.

Advocacy group Freedom to Marry is tracking the progress of marriage equality litigation across the country.

KFYRTV.COM – Bismarck, ND – News, Weather, Sports

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 Nancy Rosenbrahn, Jeremy Coller and Clay Schweitzer, Lynn and Monica Serling-Swank, Krystal Cosby and Kaitlynn Hoerner, Barbara and Ashley Wright, and Greg Kniffen and Mark Church. Defendants include Governor Dennis Daugaard, Attorney General Marty Jackley, Secretary of Health Doneen Hollingsworth, Secretary of Public Safety Trevor Jones, Pennington County Register of Deeds Donna Mayer, and Brown County Register of Deeds Carol Sherman. United States District Court Judge Karen Schreier is overseeing the matter in the Southern Division of the District of South Dakota. The Court file number is 14-4081.  The allegations contained in the Complaint are below: (more…)

–For Immediate Release–

MAYOR HODGES TO MARRY SOUTH DAKOTA COUPLE WHO WILL CHALLENGE STATE’S SAME-SEX MARRIAGE BAN

Minneapolis, April 24, 2014 – This Saturday, Minneapolis Mayor Betsy Hodges will welcome visitors Nancy Robrahn and Jennie Rosenkranz to The City of Lakes.  The Mayor will then marry the South Dakota couple, setting the stage for them to return home and challenge a 2006 constitutional same-sex marriage ban.

The Rapid City couple has been together for 27 years.  They have four children and six grandchildren.  “We already consider ourselves married; this is a rededication of that marriage,” said Robrahn, 68.

“We are approaching the time when end of life decisions and plans need to be made.  There are many federal protections that will become available to us through this Minnesota marriage. We hope to see the day when couples like us don’t have to travel out of South Dakota to marry,” said Robrahn.

Upon returning home, the pair will join two other South Dakota couples and, together, will file a federal class action civil rights lawsuit against South Dakota government officials.  The lawsuit, which will soon be filed in United States District Court, will seek to overturn South Dakota’s same-sex marriage ban and to require the state to recognize marriages performed out of state.

Attorney Joshua Newville of Minneapolis-based Madia Law LLC represents all three couples. “These couples show that love and commitment exist in South Dakota just as they exist in Minnesota and beyond.  South Dakota has failed to treat all of its citizens with the dignity and respect deserved by all people.  With the filing of this lawsuit, we will lead South Dakota down a better path,” said Newville.

At 1:00 P.M. on Saturday, April 26, 2014, Mayor Hodges will marry the couple in a private ceremony at the Community of Christ Church in North Minneapolis.  The ceremony will be followed by a press conference at 1:30 P.M., where the Mayor will introduce the couple as, “Mrs. and Mrs. Rosenbrahn.”

On behalf of the United States and multiple State governments, Madia Law has filed a federal qui tam action in federal District Court.  The filing alleges fraud against the government by multiple corporate Defendants.  Pending potential intervention by the United States, the suit remains under seal for at least 60 days.

In a qui tam action, a private party known as a relator brings a whistleblower suit on behalf of the government; thus, the government, not the relator, is considered the plaintiff.  If the action is successful in prosecuting the fraud, the relator receives an award, generally based on a portion of the amount recovered for the government.  The False Claims Act, Title 31 U.S.C. § 3279 et seq., authorizes qui tam actions and requires that parties wishing to bring such actions retain counsel.

As published in the Harvard Law & Policy Review, Kevin M. Clermont & Stewart J. Schwab observed that from 1979-2006, plaintiffs bringing employment law matters (discrimination, wrongful termination, etc) in federal court won only 15% of the time. When paired with the observation that plaintiffs in non job-related matters won 51% of the time, that 15% figure is stunning. Questions as to why there is such an imbalance in employment law compared to other areas of law have been the focus of many journalists, lawyers and academics. But for attorneys who represent plaintiffs in employment discrimination cases, there is one key factor worth focusing on: properly preparing a case to survive motions for dismissal, particularly summary judgement motions.

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Wandersee v. Farmers State Bank (D. Minn. 2012):  A federal district court in Minnesota denied summary judgment to Farmers State Bank in a disability discrimination case under the Americans with Disabilities Act and Minnesota Human Rights Act brought by Karin Wandersee, a longtime employee who suffers from multiple sclerosis.

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Sanders v. Lee County School District, No. 10-3240 (8th Cir. 2012).  An Arkansas jury found in favor of plaintiff Sharon Sanders on her Title VII claims of race discrimination and constructive discharge.  The jury awarded $10,000 in compensatory damages for race discrimination, $60,825 in back and front pay damages for her constructive discharge, and $8,000 in punitive damages.  After the verdict, the district court judge granted the School District’s motion under Rule 50 of the Federal Rules of Civil Procedure to set aside the jury’s verdicts on constructive discharge and punitive damages.  Sanders appealed the district court’s vacation of the jury’s verdicts to the Eighth Circuit Court of Appeals – the Eighth Circuit reversed the district court’s ruling and reinstated the jury’s findings.

(more…)