Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 1 of 49 PageID #: 1

UNrrBo Srarps Drsrnlcr Counr DrsrRrcr oF Souru Dnrora

FÏIEN
MAY 2 2 2s1\
ff*{frt

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 xninln ^uy::;,,"o,

Court File No. I41V_
ft Case Type: Civil nignts tlSf
COMPLAINT FOR PERMANENT INJUNCTION AND
DECLARAT'RY RELTEF

v,s.
Dennis Daugaard, in his official capacity as Governor;
Marty Jackley, in his official capacity as Attôrney General;
Doneen Hollingsworth, in her official capacity as Secretary of Health;
Trevor Jones, in his official capacity as Secretary of Public Safety;
I)onna Mayer, in her official capacity as Pennington County Register of Deeds;
Carol Sherman, in her official capacity as Brown County Register of Deeds;
Defendants.

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 2 of 49 PageID #: 2
INTRODUCTORY FACTS
1. During the infancy of the United States, John Adams, James Madison,
Alexis de Tocqueville, and others, wamed of "tyranny of the majority." Concerned that a
direct democracy would allow a simple majority to stampede the rights and dignity of minorities, our nation's founders created a constitutional representative democracy, establishing a system of government with several super-majoritarian checks on simple
majorities and myriad institutional checks and balances pursuant and subordinate to the Constitution.
2. In 1898, South Dakota became the first State in the nation to allow a simple
majority of its voting-eligible citizenst to initiate and enact constitutional amendments.
Since that time, and particularly in the last half century, our country has seen an explosion in the use of such statewide popular votes to circumvent the traditional
- legislative process and to override the judiciary often in a manner that tramples on the
dignity and cquality of minorities.
3. In 1992, a 53Yo majority of Colorado voters approved a ballot measure that
added Amendment 2 to the Colorado Constitution. The amendment prohibited every
county, city, and town within Colorado from protecting gay and lesbian individuals from
discrimination. In 1996, the United States Supreme Court reviewed the amendment in
Romer v. Evans, 517 U.S. 620 (1996). In the Court's opinion, Justice Kennedy wrote, "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 I South Dakota did not allow women to vote until 1918. 2 The Proposal, YouTube (May 21, 2014),http :/þoutu.belTKkSMnlxWnU

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 3 of 49 PageID #: 3

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).
4. With the adoption of the Fourteenth Amendment in 1868, our Constitution

provided not only a more expansive definition of citizenship, but also the framework for

assuring our Founders' "self-evident" truth of liberfy and equality: "No State shall make

or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the equal protection of

the laws."
5.

Guided by this framework, the United States Supreme Court has declared

the right to marryr as "fundamemtal" and one of the "basic civil rights of ntan." Loving v.
Virginia. 388 U.S. I, 12 (1967). Its decisions have made clear that "the freedom of

personal choice in matters of marriage and family life is one of the liberties" protected by

the Fourteenth Amendment. Zablocki v. Redhail. 434 U.S. 374,393 (1978).
6. In United States v. Windsor. 133 S. Ct. 2675 (2013), the Supreme Court

repeatedly emphasized that although the States may generally define and regulate

marnage, that such laws, "of course, must respect the constifutional rights of persons." Id.

at 2691. In striking down Section 3 of the Defense of Marriage Act, the Court recognized

that "the avowed purpose and practical effect of the law... [was] to impose a

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 4 of 49 PageID #: 4
disadvanta1a, ã separate status, and so a stigma upon all who enter into same-sex
maffiages..." Id. at 2693.
7. Recognizing that the "liberty protected by the Fifth Amendment's Due
Process Clause contains within in the prohibition against denying to any person the equal
protection of the laws," the Court added that, "the equal protection guarantee of the Fourteenth Amendment makes the Fifth Amendment right all the more specific and all
the better understood and preserved." Id. at 2695.
8. In 2006, in response to the recognition of same-sex couples by the other
States and jurisdictions, a group of South Dakotans sought to "protect marriage" by denying same-sex couples the right to marry in the State by restricting the definition of
marriage to "a man and a woman" in the South Dakota Constitution via "Amendment C."
The amendment, which passed by approximately 12,000 votes on November 7,2006, didn't stop at denying loving and committed same-sex South Dakotan couples the right to maffy; it also refuses to allow the South Dakota government the authority to recognize
marriages, civil unions, domestic partnerships, and "all other quasi-martial unions" performed in other States and jurisdictions. The avowed purpose-and the practical
effect-of Amendment C's ratification was born of a bare desire to impose a
disadvantage, a separate status, a stigma, and a harm upon a politically unpopular group.
9. South Dakota passed Amendment C despite the fact that in 1996 the South
Dakota legislature had already banned same-sex maniage by enacting changes to Title 25
- of its Codified Laws. These changes intended as a response to court decisions - indicating that Hawaii might allow same-sex couples to marry included language that

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 5 of 49 PageID #: 5
prohibited marriage of same-sex couples and voided same-sex marriages from other
jurisdictions. By way of example, Title 25 of South Dakota Codified Law provides:
(a) Marriage is a personal relation, between a man and a woman,
arising out of a civil contract to which the consent of the parties capable of making it is necessary. Consent alone does not constitute a marriage; it
must be followed by a solemnization. S.D. Codified Laws $ 25-1-1.
(c) Any marriage contracted outside the jurisdiction of this state, except a maniage contracted between two persons of the same gender, which is valid by the laws of the jurisdiction in which such marriages 'was contracted, is valid in this state. S.D. Codified Laws $ 25-1-38.
10. Via the Constitution and the statutory bans ("hereinafter collectively
referred to as "the marriage bans"), South Dakota refuses to confer the rights and responsibilities of marciage upon same-sex couples, and refuses to recognize same-sex
marriages performed in other jurisdictions; by doing so, South Dakota has given effect to
South Dakota has targeted a minority of individuals for discrimination on the basis of
sexual orientation. By this Complaint, Plaintiffs seek to end that unlawful discrimination.
11. The above-named loving and committed couples ask this Court to hold that
the State of South Dakota cannot discriminate against same-sex couples who seek the right to marry; and, they ask this Court to hold that South Dakota cannot discriminate
against same-sex marriages in choosing whether or not to recognize marriages performed out of state.

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 6 of 49 PageID #: 6
12. Named Plaintiffs Nancy and Jennie Rosenbrahn and Named Plaintiffs Clay
Schweitzer and Jeremy Coller are individuals living in the State of South Dakota. They are loving and committed same-sex couples who wished to marry while living in South Dakota and applied for marriage licenses in South Dakota but were denied on the basis of their same-sex parfirerships. As a result, both couples were forced to travel hundreds of miles, across State lines, and to another time zone in order for other States to confer upon them the dignity and respect that is deserved by all loving and commifted couples under the law. These Plaintiffs wish for the State of South Dakota to now respect and recognize their lawfully obtained marriages, and for this Court to declare South Dakota's refusal to rccogníze their lawfully obtained out-of-state maniages as unconstitutional.
13. Named Plaintiffs Krystal Cosby and Kaitlynn Hoerner are individuals in a
female same-sex relationship; they are presently living in the State of South Dakota and seek the right to marry in South Dakota. They applied for a marnage license in South Dakota but were denietl on the basis of their same-sex partnership. These Plaintiffs seek the right to marry in South Dakota, and for this Court to declare South Dakota's refusal to
do so as unconstitutional.
14. Named Plaintiffs Lynn and Monica Serling-Swank are individuals in a
same-sex marnage who are presently living in the State of South Dakota but who were
living outside of South Dakota when they were lawfully unionized by another State. South Dakota refused to recognize their union when they traveled and moved into the State. They wish for the State of South Dakota to now respect and recognize their

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 7 of 49 PageID #: 7
lawfully obtained maniage and for this Court to declare South Dakota's refusal to do so as unconstitutional.
15. Named Plaintiffs Barbaru and Ashley Wright and Named Plaintiffs Greg
Kniffen and Mark Church are individuals residing in South Dakota who are also in loving, committed, same-sex relationships. These couples wished for the right to be married while living in the State of South Dakota but could not do so due to South
Dakota's discriminatory laws. Accordingly, these couples lawfully married outside the
State of South Dakota and now seek South Dakota's respect and recognition of their
marriages.
16. Marriage plays an important role in our society. In addition to being the
celebration and hallmark of a couple's commitment to build their lives and family together, it confers dignity, status, rights, and responsibilities. Plaintiffs have formed or
want to form enduring bonds worthy of the respect that the State affords to different-sex
the right to marry their chosen partners and declines to recognize lawful marriages
entered in other jurisdictions based on sexual orientation and sex. The State's
discriminatory "maffiage bans" are enshrined in South Dakota statutes and in South Dakota Constitution Article 2I, 5 9, which limits marrrage to couples composed of "a
man and a woman."
17. The marriage bans inflict serious and irreparable harms upon same-sex
couples and their children that cannot be explained by reference to any legitimate
governmental interest.
6

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 8 of 49 PageID #: 8
18. Same-sex couples are identical to different-sex couples in all characteristics
relevant to marriage.
19. Same-sex couples make the same commitment to each other as different-
sex couples. Like different-sex couples, same-sex couples fall in love, build their lives together, plan their futures together, hope to grow old together, and seek to make decisions about end of life and post-life planning together. Like different-sex couples, same-sex couples support each other emotionally and flrnancially, and take care of each other when faced with injury or illness.
20. Same-sex couples seek to marry for the same emotional and romantic
reasons and the same reasons of dignity as different-sex spouses. They desire to declare their love and commitment before their families, friends, and community, and to obtain the status, security, protections, and responsibilities of marriage.
2I. Like some different-sex couples, some same-sex couples, including Named
Plaintiffs Krystal Cosby and Kaitlynn Hoerner and Named Plaintifß Barbara and Ashley Wright, are parents raising children together. These couples and their children are equally
worthy of the tangible rights and responsibilities, as well as the respect, dignity, and legitimacy, that access to marriage confers on different-sex couples and their children.
For the many children born to or being raised by same-sex couples, the tangible resources and societal esteem that marriage confers are no less necessary and precious than for children of different-sex couples.
22. Our courts and our society have discarded, one by one, marnage laws that
violated the United States Constitution's mandate of equality and liberty, such as anti-

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 9 of 49 PageID #: 9
miscegenation laws and laws that denied married women independence and the right to make their own decisions. History teaches us that the vitality of marriage does not depend on maintaining discriminatory laws, and that eliminating unconstitutional restrictions on marriage has enhanced the institution. Indeed, in 17 states and the District of Columbia, same-sex couples are legally marrying and the institution of marriage continues to thrive.
JURISDICTION AND VENUE
23. This action arises from a dispute involving the Constitution and the laws of
the United States. This Court, therefore, has federal question subject maffer jurisdiction pursuant to Title 28 United States Code $$ 1331 and 1343.
24. Venue is proper in this Court pursuant to 28 U.S.C. $ 1391, as all
Defendants reside within this State and District and a substantial part of the events that gave rise to Plaintiffs' claims took place in this State and District.
25. This Court has personal jurisdiction over Defendants because they are
residents of, and domiciled in, this State and District.
26. This Court has the authority to enter a declaratory judgment and to provide
preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure and28 U.S.C. $$ 2201 and2202.
PARTIES
A. Named Plaintiffs 27. Plaintiffs arc each individual "persons" within the meaning of 42 U.S.C. $
l 983.

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 10 of 49 PageID #: 10
Jennie and Nøncy Rosenbrahn
28. Named Plaintiffs Nancy Rosenbrahn, age 68, and Jennie Rosenbrahn, age
72, are adult individuals in a female same-sex relationship. They reside in Rapid City,
South Dakota. Together, the couple owns and manages a mobile home park in Rapid City and provides foster housing for rescued dogs.
29. A native of Milwáukee, Wisconsin, Nancy settled in Rapid Cíty in 1973.
She subsequently operated a drive-in near Keystone, South Dakota and a roller skating rink in Rapid City.
30. Jennie grew up in rural Louisiana and also moved to Rapid City in the mid
1970's. In the early 1980's, Jennie became the owner of the land containing the Ash
Mobile Home Park.
31. Nancy and Jennie first met at a friend's home for lunch in 1983. Following
four years of courtship, they fell in love and began their relationship in 1987, with the couple driving to Kay Jewelers in the old Rapid City Mall and buying rings to signiff
their love and commitment to each other.
32. For the past three decades, Nancy and Jennie have lived together as a
couple and have brought their families together. Between the two of them, they have four children, which in turn have given Nancy and Jennie six beautiful grandchildren.
33. Ethan, one of their grandsons, was a curious nine-year-old boy when one
day a couple years ago, Nancy recalls Ethan asking her how she felt about the fact that her and Grandma Jennie couldn't get married like his parents. The question pulled at
9

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 11 of 49 PageID #: 11
Nancy's heartstrings, as it was evident to Nancy that Ethan was sad and confirsed as to
why his grandmothers were treated differently by society.
34. Despite being together for so long, due to South Dakota's installment of
laws that deny them recognition as a couple, many South Dakotans do not realize that Nancy and Jennie are in a relationship. That hurts Nancy and Jennie, who show the kind of love and dedication for each other that so many dream of having; yet, they are often
assumed to be sisters.
35. As Nancy and Jennie began making end-of-life planning decisions, they
were forced to recognize that South Dakota, the State in which they've spent nearly 30 years building a life together and wish to remain for their lives' durations, refuses to recognize their relationship. That refusal has numerous negative consequences for the
couple; for example, under South Dakota law, if Jennie were to pass away, Nancy would
have no stake in the mobile home park they operate together.
36. In light of all of the above, in 2013, after hearing the story of Edith
Windsor and Thea Spyer, and after reading the Supreme Court decision, Nancy asked Jennie to marry her, and Jennie happily agreed.
37. On March I0,2014, Nancy and Jennie applied for a marriage license at the
Pennington County Register of Deeds in Rapid City. An agent for Defendants Dennis Daugaard, Marty Jackley, Doneen Hollingsworth, and Donna Mayer denied this loving and committed couple of 27 years a marnage license simply because they are both
females.
l0

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 12 of 49 PageID #: 12
38. Nancy and Jennie wanted to marry in South Dakota for several reasons,
including to be recognized by their State as a loving and committed couple without having to explain their relationship to others. They wanted to protect the life they had built together and be sure that end of life planning decisions, including the transfer of
assets, available survivorship benefits, etc., would be protected.
39. As parents and grandparents, they wanted to be recognized as a family
equal to others. As evidenced by Ethan's question, their grandchildren are old enough to understand that their grandparents were not married and are not treated the same as other families by the government, and he struggles to understand why. Ethan wanted Nancy and Jennie to be married like many of his friends' parents and grandparents. Nancy and
Jennie found it painful that they couldn't fulfill his wish in South Dakota.
40. On April 26,2014, pursuant to a lawfully obtained marriage license issued
by the State of Minnesota, Nancy and Jennie were married at the Community of Christ Church in Mirureapolis, Minnesota.
4I. Minneapolis Mayor Betsy Hodges officiated the couple's ceremony.
Mayor Hodges said, "Knowing that marriage even so is a powerful bond when
recognized by the law and therefore by your community, in a new way, do you, Jennie, now choose marriage to Nancy under the law? And do you, Nancy, now choose marriage to Jennie under the law?" With tearful joy, both enthusiastically answered, "yes."
42. After the ceremony, the couple celebrated with their closest family and
friends. Their daughter baked what is arguably the world's most delicious cake.
11

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 13 of 49 PageID #: 13
43. Prior to being married in Minnesota, the couple had different last names. When they were married, they combined their last names of "Robrahn" and
"Rosenkranz" into "Rosenbrahn," as indicated on their Minnesota marriage license. After
their wedding ceremony, the couple traveled back to South Dakota, where the State refuses to recognize their maniage and still sees them as "Nancy Robrahn" and "Jennie
Rosenkranz,"
44. On May 8,2014, Nancy and Jennie went to the Rapid City licensing station
to change their name in light of their marriage. An agent for Defendants Daugaard and Jackley and Defendant Trevor Jones denied the couple the right to change their name,
handing them a form that said, "Marriage certificates for same sex couples aren't
valid in this State." (emphasis in original).
45. Nancy and Jennie want their drivers' licenses to carry their jointly held last
name. Unlike different-sex couples, who simply present a maniage certificate in order to do so, Nancy and Jennie are required to go through the onerous, time-consuming, and cost-involved process of asking a court to issue an order allowing them to change their
names.
Jeremy Coller and Clay Schweítzer
46. Named Plaintiffs Clay Schweitzq and Jeremy Coller are adult individuals
in a male same-sex relationship. The couple resides in Rapid City, South Dakota. Jeremy
is a Registered Nurse and Clay is the nursing director at the Theres A Hart Assisted
Living Facility.
I2

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 14 of 49 PageID #: 14
47. Clay was born in Aberdeen, South Dakota and moved to Rapid City when
he was two years old. Raised in Rapid City, CIay grew up in a loving home with a family that has always fully supported him in life and in love. Clay went to nursing school in Rapid City and is now a geriatnc nurse, which he considers his passion. Clay grew up believing in the American Dream; for as long as he can remember, he's always wanted to fall in love, get married, have kids, and build a life centered around strong famity values. Now that Clay has found Jeremy, the love of his life, he wants to continue building that
dream.
48. Jeremy was born in Rapid City and raised in Kadoka, South Dakota and
Custer, South Dakota. Jeremy earned his bachelor's degree in business hospitality from Northern Arizona University and subsequently moved to Denver, Colorado, where he began his career with a leading hotel chain.In2009, Jeremy's stepfather was diagnosed with cancer; Jeremy saw it as a calling to move back home and help care for his parents. He decided South Dakota is where he belonged, and he went back to school. Jeremy then completed the nursing program at the University of South Dakota. And, while he was there, in2010, he met Clay through mutual friends. Soon thereafter, he fell in love.
49. Clay and Jeremy share an affinity for animals and the outdoors; their joint
hobbies include camping, gardening, playing with their two dogs and four cats, and
building their home together. Clay and Jeremy have always wanted to be married and to have children together.
13

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 15 of 49 PageID #: 15
50. On August 8, 2013, surrounded by friends and family in the Black Hills,
Clay proposed to Jeremy in a beautiful surprise engagement. The engagement was
captured on video and preserved online.2
51. On April 23,2014, Clay and Jeremy applied for a marriage license at the
Pennington County Courthouse in Rapid City. An agent for Defendants Daugaard,
Jackley, Hollingsworth, and Mayer denied the couple a marriage license simply because they are both male.
52. The couple wanted a lawful maniage, which South Dakota would not
allow. Accordingly, Clay and Jeremy chose to be married in Iowa since it was closer to Clay's brother's home. On May 14,2014, they were married in Sioux City, Iowa before a
few close friends and family. In September 2014, Clay and Jeremy plan to have a
ceremony and reception in the Black Hills to celebrate with the rest of their friends and family in South Dakota.
53. Having their marriage reoognized, in their home state of South Dakota is
important to Clay and Jeremy, especially as they prepare for having children. Clay and Jeremy want to be sure that adequate legal protections are avallable for their family. The State's refusal to recognize their marriage hurts them and burdens their family in many ways. For example, unlike different-sex couples, since their Rapid City home is in
Jeremy's name, if he were to pass away, Clay would not be considered family and
wouldn't be eligible under the State's intestacy laws to inherit the home or any portion of Jeremy's assets. Clay and Jeremy also worry about having children in South Dakota 2 The Propos al, YouTube (May 2 I, 20 | 4), http : I I y outu. be/TKkSMnIxWnU
t4

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 16 of 49 PageID #: 16
because of the stigma and lack of protections they and their children will face due to
South Dakota's refusal to recognize their marriage. Lynn ønd Monica Serlìng-Swønk
54. Named Plaintiffs Lynn Serling-Swank and Monica Serling-Swank are adult
individuals in a female same-sex relationship. They reside in Brandon, South Dakota. They have been together for over 12 years. They both work at the same credit card
company in Sioux Falls, South Dakota, where they get to see each other every day. They enjoy the same music, the same food, and the same hobbies. The couple loves animals. They have three cats and two dogs, and although Lyrur wants more pets, Monica has drawn the line.
55. Monica was raised in Sioux Falls, and after graduating high school, she
joined the United States Navy in October 1982. Monica vividly remembers the day she left South Dakota to enlist. Her mother told her, "Whatever happens, don't let them turn you into a lesbian."
56. V/hile in the Navy, amidst further pressures to conform to stereotypical
gender roles and behaviors, Monica struggled to understand and accept her sexual
orientation. She was written up for wanting to join an all-women's softball team because
she would be "associated with the lesbians." With the help of Navy friends, who
encouraged her to do some soul searching in order to more fully understand and accept herself, Monica eventually recognized and accepted that she was a lesbian. Concerned
about choosing between her career in the Navy and choosing to seek a loving and
15

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 17 of 49 PageID #: 17
committed relationship with a rwoman, Monica completed her initial four years in the
Nurny, was honorably discharged, and moved forward with her life.
57. Lynn grew up just outside of New York City. Her family, including her
mother, father, and brother, all loved her unconditionally. Around the third grade, Lynn began to recognize that she had attractions to women. After graduating high school, Lynn
went to Simmons College in Boston, where she received her bachelor's degree in
marketing. After college, Lyr¡r married a man. When that relationship ended ayear and, a half later, Lyrur decided it was time to be more authentic to her true self. She took a job
with Starbucks, moved to Connecticut, and in 2002 while managing the Newtown,
Connecticut Starbucks, Lynn met Monica, who was also working for Starbucks.
58. Monica and Lynn quickly fell in love with each other. They eventually
moved in together and continued to forge an ever-stronger bond. Approximately four years after meeting, while living in Connecticut, Monica and Lynn decided they wanted
to get married. They wanted to get married because of their unconditional love f'or each other and their desire to spend the rest of their lives together. Although marriage wasn't an option for them atthat time, they lawfully obtained a civil union license from the State of Connecticut. And, on June 4,2006, in front of over 100 family and friends, the couple
had a ceremony and party at one of their favorite places, the Stony Hill Inn in Bethel,
Connecticut. There, on a gazebo overlooking a beautiful summer lawn and fountain pond, Monica and Lynn expressed their vows of lifelong love and commitment to each other, danced, ate, and generally celebrated their relationship with those that meant so much to them.
T6

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 18 of 49 PageID #: 18
59. Recognizingthat she had been away from her family for over 20 years, and
wanting to go back to South Dakota to help her parents run their family business, Monica discussed her concerns with Lynn. Lynn immediately decided that, for the love of her life, it was worth traveling across the country and moving to a place she had never been. Together they developed a plan to move to South Dakota and start new lives.
60. When the couple moved to South Dakota in 2007, it was clear they had
traveled to a State that was not as welcoming to them; their lawfully obtained civil union
was considered worthless. Monica and Lynn immediately felt the effects of the
discriminatory laws in South Dakota's society. Even after their civil union was converted
to a marriage by Connecticut in 2010, Monica and Lynn are routinely greeted with hostility, awkwardness, and confusion when they tell people in South Dakota that they
are wives.
61. From constantlybeing asked if they want separate tabs at dinner, to Lynn
being denied access to Monioa while she was in the hospital, the couple is frustrated that South Dakota has ratified their treatment as second-class citizens. Unlike different-sex couples, for example, Monica and Lynn have had to go to great lengths to ensure that their assets are protected in the event that one of them were to pass arway and to ensure that they their doctors know who each other are and won't treat the other as a stranger in the event that one of them is in the hospital.
62. The couple is frustrated that they have to spend thousands of extra dollars
and immeasurable extra energy compared to different-sex couples in an effort to provide protection for their relationship under the law---only to end up with less such protection.
I7

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 19 of 49 PageID #: 19
63. In short, Monica and Lynn want their Connecticut marriage to be treated
with the same dignity and respect that is afforded to different-sex couples in South
Dakota.
Krystal Cosby ønd Køíþnn Hoerner
64. Krystal Cosby and Kaitlynn Hoerner are adult individuals in a female
same-sex relationship. They reside in Aberdeen, South Dakota. On April 24,2014, the
couple was thrilled to welcome their daughter, K.C., into the world.
65. Krystal was born and raised near Hot Springs, Arkansas. She attended high
school in Jessieville, Arkansas, where she joined the Army Reserve Officers' Training Corps. In2007, Krystal enlisted in the Army as a Private First Class. After basic training in South Carolina, she was stationed in Tacoma, Washington, where Krystal worked as a dental technician and lived just over the border in ldaho.
66. In2011, Krystal's company was preparing to be part of the last deployment
to lraq. During pre-deployment preparations, Krystal was severely injurctl anrJ was
unable to deploy. So, Krystal finished out her enlistment and was honorably discharged.
Krystal then moved to South Dakota to help her disabled family care for Krystal's
grandmother. Shortly after moving to South Dakota, Krystal met Kaitlynn, who was born and raised in western South Dakota and later moved to Abderdeen to be near family and friends.
67. In 2012, Krystal and Kaitlynn met through mutual friends and initially
became friends themselves. They quickly became closer and established a relationship. Together, the couple enjoys doing many activities, including going to the park, hosting
l8

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 20 of 49 PageID #: 20
social gatherings, and viewing and making art. They live together in a quiet Aberdeen neighborhood next to Kaitlynn's mom.
68. The couple has always wanted children. After discussing it among
themselves and with their friends and family, Krystal underwent in vitro fertilization, and on April 25, 2014, their world changed when they welcomed K.C. into the world at St. Luke's hospital in Abderdeen. 'When K.C. was born, the couple was crushed to discover that the State of South Dakota would not allow Kaitlynn to be listed as a parent on K.C.'s birth certificate. They must now go through the onerous process of Kaitlynn attempting to
adopt K.C. as a second parent, and it is unclear whether that will even be allowed under
South Dakota law. See S.D. Codified Laws $ 25-6 et seq. It would not be unclear, however, if Kaitlynn and Krystal were able to mafry, or if South Dakota treated them as
they treat different-sex couples.
69. If they are not allowed to marry or to get a court to allow Kaitlynn to adopt - as a second parent, Kaitlynn will lack any recognition as a parent of her own child a
status that could automatically be granted to persons in different-sex relationships
immediately upon the child's birth. The lack of legal recognition that Kaitlynn is a parent of her and Krystal's own child exposes the couple and their child to unacceptable risks that deprives them of a host of critical legal protections should any health emergencies or other problems arise.
70. Krystal and Kaitlynn want to marry to express their devotion to each other
and to obtain the dignity and legitimacy of marriage for them and K.C. Krystal and Kaitlynn worry that as K.C. gets older, she'will realize that her friends' parents are
T9

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 21 of 49 PageID #: 21
married, while the law treats their parents as "less than." Krystal and Kaitlynn do not want K.C. to carry a sense of uncertainty, inferiority, or shame because she knows her parents cannot secure their relationship through maniage. Krystal and Kaitlynn also
worry about what might happen in the event of a medical emergency, especially if
Kaitlynn's relationship to K.C. is questioned.
7I. Krystal and Kaitlynn are legally qualified to marry under South Dakota
law, but for the fact that they are the same sex. They are of sound mind and capable of
consent. They are over the age of 18. They have no living spouse of a previous
undissolved marriage. They are not related to their prospective spouses within the
prohibited degrees of blood or marriage. They are willing to provide the information to
receive a maniage license and to pay the required fee. They are able and eager to assume the responsibilities of marriage.
72. On May 22, 2014, Krystal and Kaitlynn tried to apply for a marnage
license at the Brown County Register of Deeds. An agent for Defendants Daugaard, Jackley, Hollingsworth, and Defendant Carol Sherman, denied the couple a marriage
license simply because they are both female. The agent said, "We don't do that here in South Dakota."
Barbars and Ashley Wright
73. Barbara ("Barb") and Ashley Wright are adult individuals in a female
same-sex relationship. The Wrights live in Aberdeen, South Dakota with their six
children from previous relationships. Ashley is four months pregnant with their next
20

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 22 of 49 PageID #: 22
child, which they are excited to welcome in Fall 2014. Barb works as a truck diver and Ashley is a CN for Bethesda Senior Living Center in Aberdeen.
74. Barb and Ashley met in 2012 when they were both working at Aberdeen
Health and Rehabilitation Center. They were both single divorced mothers working two jobs each to care for their children. Given their common interests and passion for caring for others, they quickly fell in love.
75. Barb was born and raised in Buffalo, Minnesota, where she went on to
work as a prison guard in Appleton, Minnesota and raised her children. Barb would often bring her children camping to Storybook Land near Abderdeen. She enjoyed the area so
much that she decided she wanted to move there and raise her children in Aberdeen. When Barb met Ashley, she quickly knew she wanted to spend her life with her.
76. Ashley was born in Reno, Nevada and was raised in Orlando, Florida.
Ashley had family in South Dakota and lived in the State briefly while she was younger. And, when she had her first daughter, Ashley and her ex-parhrer made the decision to move to South Dakota because Ashley felt it was a better place to raise children.
.77 After her divorce, Ashley met Barb n 2012 when they were both divorced
single mothers working at Aberdeen Health and Rehabilitation Center. They discovered their common interests and immediately began spending as much time together as possible. The couple fell madly in love, and on September 20,2013, they were lawfully married in the State of Minnesota. The couple talked about having a child together, and in early 201{ Ashley underwent in vitro fertllizatíon Ashley is now sixteen weeks pregnant and the couple is expecting their first child in Fall 2014.
2I

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 23 of 49 PageID #: 23
78. Barb and Ashley frequently take their children to Storybook Land, have
barbeques, spend time outside playing with the children, go fishing and swimming, and enjoy spending time with friends. They feel Aberdeen is a safe and quiet place to raise their children, and they want to remain there. It pains them, however, that their family is not seen as equal by the State.
79. According to the laws of South Dakota, different-sex married couples who
conceive a child using in vitro fertilization are able to take advantage of the statutory
presumption that both spouses are the parents of a child born during a marriage. Different sex couples therefore are not required to take any additional steps in order to obtain legal recognition for both of them as the parents of the child they decided to have together.
Because the State of South Dakota does not recognize Barb and Ashley's marriage, however, Barb cannot benefit from that marital presumption. If they are not able to use any such steps to confirm that both are the legal parents of the child, Barb will lack any
- recognition as a parent of her own child a status that automatically would be granted
to any different-sex spouse immediately upon the child's birth. The lack of automatic
legal recognition that Barb is a parent of her and Ashley's own child exposes the couple
and their child to unacceptable risks that deprives them of a host of critical legal
protections should any health emergencies or other problems arise during or shortly after the birth of their child.
80. When Barb and Ashley married, Barb took Ashley's last name. Because the
State of South Dakota refuses to recognize their maniage, however, the State of South Dakota refuses to issue Barb a drivers license in her married name. A few weeks after her
22

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 24 of 49 PageID #: 24
marriage, Barb went to the Aberdeen Drivers' Licensing station and attempted to have her name changed. An agent for Defendants Daugaard, Jackley, and Jones denied her. The hostile agent told Barb to leave the licensing station and for her and her family to "move back to Minnesota." This has caused significant problems for Barb, who is a truck driver and is subject to strict background checks and drivers licensing rules. When Barb applied for her most recent driving position, she almost didn't get the job when she presented her social security card and drivers license and the last names appeared differently. Barb had to go home and get a copy of her marnage certificate and spend a significant amount of time and energy explaining the situation to her employer.
Greg Kniffen and Mark Church
81. Greg Kniffen and Mark Church are adult individuals in a male same-sex
relationship. The couple presently lives in Sioux Falls, South Dakota and has been
together for 11 years. Both are natives of South Dakota; Greg was born and raised in Tyndall and Mark was born and raised Abderdeen. Mark is a pharmacy technician at
CIGNA Healthcare. Greg, a former business owner who has twice ran for South Dakota's
House of Representatives, recently made a career change and is presently attending
pharmacy school.
82. Living in rural South Dakota towns that were hours away from each other,
Greg and Mark first met online in Fall 2000. For two full years, they talked about life, love, travel, music, careers, and more. They discussed what it was like living as gay men in small towns and spoke about their experiences of being raised in Catholic families.
23

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 25 of 49 PageID #: 25
They became close füends despite the distance and, in2002,Mark moved from Aberdeen to Sioux Falls.
83. On an October evening in 2002, Mark was seated in the audience at a
church in Sioux Falls; he had come to watch Greg-who he had yet to meet in personperform in a play. After the play, Greg invited Mark to go out with some friends. Mark
felt a spark. They exchanged phone numbers and eventually began dating.
84. After falling in love, in October 2003, Mark and Greg moved in together.
Since that time, they've enjoyed experiencing life and the world together. They love to
travel and meet new people, enjoy time on the lake jet skiing, participating in Pride events in Sioux Falls, enjoy discussing politics, enjoy spending time with their friends,
and adore their friends' young children.
85. Greg and Mark followed the story of Edith Windsor. After reading the
Supreme Court's opinion in June 2013, Greg proposed to Mark. Knowing that they
couldn't marry in South Dakota, the couple married in Minnesota on October 11, Z|JI3.
86. Greg and Mark want their marriage to be recognized in South Dakota for
several reasons, including to be recognized by their State as a loving and committed couple without having to explain their relationship to others. They want to protect the life they are building together and be sure that end of life planning decisions, including the transfer of assets, available survivorship benefrts, and all of the other rights, benefits,
protections, and responsibilities available by law for marriage are protected.
B. Defendants
24

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 26 of 49 PageID #: 26
87. Each Defendant is an individual "person" within the meaning of 42 U.S.C.
$ 1983. Each Defendant, at all times relevant to this Complaint, was and is acting in the color and scope of their official capacity as an employee of the government of the State of South Dakota. Each individual Defendant is sued in their official capacily.
88. Defendant Dennis Daugaard is the Governor of South Dakota. In his
official capacity, the Governor is the chief executive officer of the State of South Dakota.
It is his responsibility to ensure that the laws of the State are properly enforced. The
Governor maintains an office in Pierre, South Dakota. The Govemor oversees, directs, and enforces each of the acts, omissions, duties, and responsibilities of every other named Defendant. The Governor enforces and executes the laws of the State of South Dakota,
including the laws banning marriage and recognition of same-sex marriage and civil
unions.
89. Defendant Marty Jackley is the Attorney General of the State of South
Dakota. In his official capacity, the Attorney General is the chief legal officer of the State
of South Dakota. It is his duty to see that the laws of the State are uniformly and
adequately enforced. The Attorney General maintains an office in Pierre, South Dakota. The Attorney General enforces each of the acts, omissions, duties, and responsibilities of every other named Defendant. The Attorney General enforces and executes the laws of the State of South Dakota, including the laws banning marriage and recognition of samesex marriage and civil unions.
90. Defendant Doneen Hollingsworth is the Secretary of Health. In her official
capacity as Secretary of Health, Secretary Hollingsworth is responsible for overseeing the
25

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 27 of 49 PageID #: 27
Division of Administration, the State's vital records registration system, and the Register of Deeds' office. This includes the registration, collection, preservation, amendment, and
certification of vital records, including certiflrcates of marriage, birth, and death.
Secretary Hollingsworth's duties also include directing, supervising, and issuing
instructions for administration and staff activities of the Division of Administration, and
promoting uniformity of policy and procedures throughout the State in these matters. Secretary Hollingsworth must ensure compliance through all of these functions with
relevant State laws, including those that exclude same-sex couples from marriage and from having lawful out-of-state marriages recognized.
9I. Defendant Trevor Jones is the Secretary of Public Safety. In his official
capacity as Secretary of Public Safety, Secretary Jones is responsible for overseeing the Division of Licensing and Inspection. The Division of Licensing and Inspection is the division of the Department of Public Safety that operates the Driver Licensing service centers throughout the State of South Dakota. In his official capacity, Secretary Jones is responsible for overseeing the issuance of drivers licenses in South Dakota, including the development and enforcement of policies and procedures for updating those records to reflect South Dakota residents' marriages.
92. Defendant Donna Mayer is the Pennington County Register of Deeds. In
her official capacíty, Ms. Mayer's duties include issuing marciage licenses. Ms. Mayer must ensure compliance through this function with relevant State laws, including those
that exclude same-sex couples from marriage.
26

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 28 of 49 PageID #: 28
93. Defendant Carol Sherman is the Brown County Register of Deeds. In her
offrcial capacíty, Ms. Sherman's duties include issuing marriage licenses. Ms. Sherman must ensure compliance through this function with relevant State laws, including those
that exclude same-sex couples from marriage.
FURTHER FACTUAL BACKGROUND
94. Plaintiffs incorporate the allegations set forth in each of the preceding
paragraphs of this Complaint as if fully set forth herein.
95. Gay and lesbian individuals have faced a long and painful history of
societal and government-sponsored discrimination in this country. Although their sexual orientation bears no relation to their ability to contribute to society, gay men and lesbians
have been singled out for discriminatory treatment. They have faced unconstitutional
criminal penalties for private sexual conduct between consenting adults, harassment, hate crimes, and discrimination in employment and may other areas. They have even been the subject of laws sripping them of rights affonletl ttl all other citizens.
96. South Dakota has been among the states that have enacted laws stripping
gay men and lesbians of rights afforded to all other citizens. Gay men and lesbians also have been the subject of hate crimes in South Dakota.
97. Plaintiffs are residents of South Dakota who experience the same joys and
challenges of family life as their heterosexual neighbors, co-workers, and other
community members who may marry under South Dakota law or whose lawful out-ofstate marriages are recognized by South Dakota. Plaintiffs are productive, contributing
citizens who support their families and nurture their children, but the State of South
27

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 29 of 49 PageID #: 29
Dakota does not afford them the legal protections, dignity, and respect provided to other families through access to the status of marriage. By excluding Plaintiffs from marriage and from recognition of their lawful out-of-state marriages, the State subjects Plaintiffs to legal vulnerability, unequal financial burdens, and related stress, while depriving them
and their children of equal dignity and security. South Dakota's maníage bans send a purposeful message that the State views lesbians and gay men and their children as second-class members of society who do not deserve the same legal sanction, legal
protection, respect, support, responsibilities, and obligations as different-sex spouses and their families.
98. Barring same-sex couples from marriage or from recognition of their lawful
out-of-state marriage disqualifies them from rights and responsibilities that different-sex couples rely on to secure their commitment to each other, and to safeguard their families. By way of example, South Dakota's marriage bans deny same-sex couples:
(a) The abilþ to celebrate a "marriage" through a state-approved ceremony,
which symbolizes the binding together of two lives and two families, and creates
relationships and memories that couples, families, and friends cherish for a
lifetime. S.D. Codified Laws $ 25-1-5.
(b) The rights and responsibilities flowing from a spouse's statutory obligation
toward each other of mutual respect, fidelity, and support. S.D. Codified Laws $ 25-2-r
(c) The rights and responsibilities to support oneself and their spouse out of
their property or by their labor. S.D. Codified Laws ç 25-7-t
28

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 30 of 49 PageID #: 30
(d) The ability to safeguard family resources under an anay of laws that
include, for example, the exemption from taxable income of the value of health insurance coverage that one spouse receives through the other's employment and the homestead tax exemption for disabled veterans or their surviving spouse. S.D. Codified Laws $$ 10-a; ß-31;43-45;294-2-402.
(e) The ability to make caretaking decisions and exercise other rights in times
of death and disaster, including first preference in making medical decisions for an
incapacitated spouse, S.D. Codified Laws $ 34-12C-3; the ability to authorize
autopsy or dissection of one's deceased spouse, S.D. Codified Laws Ë 34-26-4; the ability to consent to an autopsy, S.D. Codified Laws $ 34-26-2; priority to control disposition of a deceased spouse's remains and to make burial anangements, S.D.
Codif,red Laws $$ 34-26-5; 34-26-16; priority to make anatomical gifts of a
decedent's body, S.D. Codified Laws $ 34-26-5; exclusive priority of benefit in wrongful death actions for wrongful death of a spouse, S.D. Codified Laws $ 215-5; and the ability to recover workers' compensation benefits for a spouse killed on the job, S.D. Codified Laws ç 63-2 et seq.
(Ð The ability to support each other in end-of-life circumstances, such as being
assured privacy for visits with a spouse in a nursing home and the right to share a
room with a spouse if both reside in the same nursing home. S.D. Codified Laws
$ 34-12-13, S.D. Admin. R. 44:04: 17:08.
(g) The right to inheritance under the laws of intestacy, S.D. Codified Laws $
29A-2-l0l(a); S.D. Codified Laws ç 29A-2-102.; the right to a lump sum
29

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 31 of 49 PageID #: 31
allowance for the surviving spouse and children, S.D. Codified Laws ç 29A-2403; the right to take an elective-share of the augmented estate in lieu of the will's
provision for the spouse, S.D. Codified Laws $$ 294-2-202; preference for appointment as an administrator of the deceased spouse's estate, S.D. Codified
Laws ç 29A-3-203; and various survivor beneflrts, including benefits for a spouse
and children of law enforcement officers, firefighters, and other emergency
personnel killed in the line of duty, S.D. Codified Laws ç 13-55-22.
(h) The ability to secure legal recognition for parent-child bonds, including
presumptive parentage and equal entitlement to a child's custody, service, and eamings in the case of unwed birth. S.D. Codified Laws $$ 25-5-3; 25-7-30;25-
5-7.
(Ð The ability to access a child's healthcare records and the right to be listed as
a parent on all such records. S.D. Codified Laws ç 25-5-7.3
û) The right to take leave under the Family Medical Leave Act ("FMLA") to
care for a same-sex spouse. Under the FMLA, 29 U.S.C. $$ 2601 et seq.,
employees are entitled to 12 weeks of unpaid leave in a l2-month period to care for a spouse with a serious medical condition, or 26 weeks to care for an eligible military service-member spouse with a serious injury or illness. Moreover, the spouses of service-members on covered active duty or who have been notified of an impending call or order to covered active duty may take FMLA leave to address short-notice deployment issues, for military events and ceremonies, to
make or update financial or legal arrangements, for counseling, and other
30

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 32 of 49 PageID #: 32
exigencies caused by a call to service, 29 C.F.R. $ 825.126. Because by regulation
the employee's state of residence determines whether a person is considered a spouse under the FMLA, see 29 C.F.R. $ 825.102, same-sex spouses residing in South Dakota are not considered spouses and would not be entitled to FMLA
leave.
(k) Rights and responsibilities under more than 1,000 federal statutes and
regulations involving marriage, including laws pertaining to Social Security,
housing, taxes, criminal sanctions, copyright, and veterans' benefits. Couples lawfully married in other jurisdictions and living in South Dakota may qualify for
some federal benefits and protections, but may be denied others, such as veteran's spousal benefits and Social Security survivor benefits. Many of these deprivations
drain family financial resources, causing harm not only to same-sex couples but
also to their children.
99. In addition to these tangible hanns, the State's rnarriage bans cleny Plaintiffs the
unique social recognition that marriage conveys. Without access to the familiar language
and legal label of marriage, Plaintiffs are unable to immediately or adequately
communicate to others the depth and permanence of their commitment, or to obtain
respect for that commitment simply by invoking their married status.
100. The inequities imposed on committed same-sex couples include harms
specific to their children and grandchildren, who are equally deserving of the stability,
pennanence, and legitimacy enjoyed by children and grandchildren of different-sex
spouses. Civil marriage affords official sanctuary to the family unit, offering parents and
3l

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 33 of 49 PageID #: 33
children critical means to secure legal parent-child bonds and a familiar, public way of demonstrating those bonds to third parties. By denying same-sex couples access to
mariage, the State reinforces the view held by some that the family bonds that tie samesex parents and their children are less consequential, enduring, and meaningful than those of different-sex parents and their children. Same-sex couples and their children must live with the vulnerability and stress inflicted by a lack of access to the same mechanisms for securing their legal relationships, and the ever-present possibility that others may
- question their familial relationship in social, legal, educational, and medical settings - and in moments of crisis in a way that spouses can avoid by simple reference to being
married.
101. Children understand from an early age that marriage signifies an enduring
family unit, and likewise understand that the State has deemed a class of families less
worthy than others, undeserving of marriage, and not entitled to the same societal
recognition and support as other families. The State has no adequate interest to justify marking the children of same-sex couples, including the children and grandchildren of Named Plaintiffs, with a badge of inferiority that will invite disrespect in school, on the playground, and in every other sphere of their lives.
102. The government is a powerful teacher of discrimination. By decreeing that
same-sex relationships should be ignored in South Dakota and enforcing that decree, the State and Defendants instruct all persons who interact with same-sex couples, including those couples' own children and grandchildren, that their relationships are less worthy than others. Bearing the imprimatur of the government, the State's marriage bans and
32

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 34 of 49 PageID #: 34
Defendants' enforcement of them communícate a view that same-sex couples and their children are unfit for the dignity, respect, and stature afforded to different-sex couples and their children. This encourages others in worþlaces, schools, businesses, and other arenas of life to follow the government's example in discriminating against same-sex
- couples and, in turn, lesbians and gay men.
103. Many private entities defer to the State's pronouncement of marital status
in defining "family" for purposes of benefits, often resulting in the exclusion of same-sex couples and their children from safety nets such as private employer-provided health insurance for family members, including to some of the Named Plaintiffs in this matter.
104. There is no legitimate interest, let alone an important or compelling one, in
excluding same-sex couples from the institution of marriage.
105. Neither history nor tradition can justiff the exclusion of same-sex couples from marriage. Marriage has remained vital and enduring because of its resilience in
response to a dynamic society, as society ancl the courts have cast off restrictions on, for
example, interracial marriage and coverture.
106. As the Supreme Court has made clear, the law cannot, directly or indirectly,
give effect to private biases. Liberty and equality, not moral disapproval, must be the guiding framework for a state's treatment of its citizens.
107. Excluding same-sex couples from marriage does nothing to protect or enhance the rights of different-sex couples. Different-sex spouses will continue to enjoy
the same rights and status conferred by marriage, unimpaired by the acknowledgment
that this freedom belongs equally to same-sex couples.
JJ

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 35 of 49 PageID #: 35
108. Although the State has a valid interest in protecting the public fisc, it may
not pursue that interest by making invidious distinctions between classes of its citizens without adequate justiflrcation.
109. The State's interest in child welfare is harmed rather than furthered by
excluding same-sex couples from marriage. That exclusion injures same-sex couples' children without offering any conceivable benefit to other children.
110. Barring same-sex couples from marriage does not affect which couples raise children together. Same-sex couples in South Dakota can and do bear children
through reproductive technology that is available to different-sex couples, and also bring children into their families through foster care and adoption. Marriage has never been the sole province of couples who are or who may become parents. Neither South Dakota nor any other state has ever restricted marriage to those capable of or intending to procreate.
1. 1 1 There is no valid basis for the State to assert a preference for parenting by
clifferent-sex couples over same-sex couples. Based on more than 30 years of research,
the scientific community has reached a consensus that children raised by same-sex
couples are as well-adjusted as children raised by different-sex couples. This consensus
has been recognized by every major professional organization dedicated to children's
health and welfare, including the American Academy of Pediatrics, the American
Medical Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America.
ll2. Other courts have found, after trials involving expert testimony, that there
is no rational basis for favoring parenting by heterosexual couples over lesbian and gay
34

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 36 of 49 PageID #: 36
couples. See, e.9., DeBoer v. Snyder. No. 12-CV-10285, 2014WL 1100794, at*I4 (E.D. Mich. Mar. 21, 2014) (finding that children's outcomes do not depend on the sex or sexual orientation of their parents); Perr)¡ v. Schwarzenegqer. 704 F. Supp. 2d 921,980 (N.D. Cal. 2010) (finding that the research supporting the conclusion that "[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to
be healthy, successful and well-adjusted" is "accepted beyond serious debate in the field
of developmental psychology"), affd sub nom. Perry v. Brown. 671 F.3d 1052 (9th Cir. 2012), vacated for lack of standing sub nom. Hollingsworth v. Perr.v. 133 S. Ct. 2652 (2013); In re Adoption of Doe. 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008)
("based on the robust nature of the evidence available in the field, this Court is satisfred
that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption"), affd sub nom. Florida Dep't of Children & Families v. Adoption of X.X.G..45 So.3d 79 (FIa. Dist. Ct. App. 2010); Howard v. Child Welfare Aeency Review Bd.. Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct. Dec. 29,2004) (holding that "there was no rational relationship between the [exclusion of gay people
from becoming foster parents] and the health, safety, and welfare of the foster children."),
aff d sub nom. Dep't of Human Servs. v. Howard. 238 S.W.3d I (Ark. 2006). 113. Excluding same-sex couples from marriage harms their children by, among
other things, branding their families as inferior and less deserving of respect, and
encouraging private bias and discrimination. Denying same-sex couples the dignity and
status of marriage humiliates the children raised by those couples, and makes it more
35

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 37 of 49 PageID #: 37
difficult for the children to understand the integrity and closeness of their own families and its concord with other families in their community.
II4. Excluding same-sex couples from marriage will not make the children of
different-sex spouses more secure. The children of different-sex spouses will continue to
enjoy the benefits that flow from their parents' marriages regardless of whether same-sex couples are permiffed to marry. The marriage bans have no conceivable effect on the choices different-sex couples make about such profound issues as whether to many, whether to have children, and whether to raise their children in wedlock.
115. The State's interest in the welfare of children parented by same-sex couples
is as great as its interest in the welfare of any other children. The family security that comes from the State's official recognition and support is no less important for same-sex parents and their children than it is for different-sex parents and their children.
CAUSES OF ACTION
Count I:
Deprivation of Equal Protection Fourteenth Amendment to the United States Constítution
116. Plaintiffs incorporate the allegations set forth in each of the preceding paragraphs of this Complaint as if fully set forth herein.
II7. Plaintiffs state this cause of action against Defendants in their official
capacities for purposes of seeking declaratory and injunctive relief.
118. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to Title 42 U.S.C. $ 1983, provides that no state shall "deny to any person
within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, $ 1.
36

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 38 of 49 PageID #: 38
119. As described throughout this Complaint, same-sex couples such as
Plaintiffs are identical to different-sex couples in all characteristics relevant to marriage.
120. South Dakota's adoption of Amendment C and its implementation into
South Dakota Constitution Article 21 $ 9, Title 25 of South Dakota Codified Laws, and all other sources of South Dakota law that preclude marriage for same-sex couples or
prevent recognition of their marriages violate the equal protection guarantee of the
Fourteenth Amendment both facially and as applied to Plaintiffs. Defendants' conduct in
enforcing these laws violates Plaintiffs' right to equal protection by discriminating impermissibly on the basis of sexual orientation and sex. Moreover, by enshrining
discrimination in the State's Constitution, Amendment C has deprived lesbian and gay South Dakotans of the equal protection of the laws by locking them out of the political process and making it uniquely more difficult to secure legislation on their behalf.
l2l. As the Secretary of Health, Defendant Hollingsworth enforces the maniage
bans by, among other things, prescribing, fumishing, and distributing forms that prohibit same-sex couples from marrying, and forms that prohibit same-sex couples from having
their lawful out-of-state marriages recognized on birth and death certificates. These actions violate Plaintiffs' constitutional rights to equal treatment, without regardto sexual orientation or sex, under the Fourteenth Amendment to the United States Constitution. This includes the rights of Plaintiffs who wish to marry or have their existing marriages recognized, such as Named Plaintiffs Jennie and Nancy Rosenbrahn, Named Plaintiffs Jeremy Coller and Clay Schweitzer, Named Plaintiffs Lynn and Monica Serling-Swank, Named Plaintiffs Greg Kniffen and Mark Church, and Named Plaintiffs Barbara and
37

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 39 of 49 PageID #: 39
Ashley Wright, some of whom want to be listed as parents on the birth certificates of
their planned children.
122. As Secretary of Public Safety, Defendant Jones enforces marriage bans by,
among other things, prescribing, furnishing, and distributing forms that prohibit same-sex couples lawfully married in other jurisdictions from having their marriage recognized on
their drivers licenses. These actions violate the constitutional rights to equal treatment of
Named Plaintiffs and others.
123. As Attorney General, Defendant Jackley has enforced marriage bans by
enforcing, directing, and defending the bans.
I24. As Governor, Defendant Daugaard has enforced marriage bans by
overseeing and directing each of the Defendants and their acts, omissions, duties, and
responsibilities.
125. The State's marriage bans, and Defendants' actions to enforce them, deny
same-sex couples equal dignity and respeot, aml deprive their farnilies of a critical safety net of rights and responsibilities. The marriage bans brand lesbians and gay men and their children as second-class citizens through government-imposed stigma and promote private bias and discrimination by instructing that same-sex relationships are less worthy than others. The marriage bans reflect moral disapproval and antipathy toward lesbians
and gay men. Díscrímínøtion Based on Sexual Orìentation.
38

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 40 of 49 PageID #: 40
126. The State's marriage bans target lesbian and gay South Dakotans as a class for exclusion from marriage and discriminate against Plaintiffs based on their sexual
orientation, both facially and as applied.
I27. The exclusion of Plaintiffs from marriage based on their sexual orientation
subjects Defendants' conduct to strict or at least heightened scrutiny. Defendants' conduct cannot withstand this scrutiny because the exclusion does not serve any
legitimate governmental interests, let alone any important or compelling interests, and does not serve any interests in an adequately tailored manner.
I28. Lesbians and gay men have suffered a long and painful history of
discrimination in South Dakota and across the United States.
I29. Sexual orientation bears no relation to an individual's ability to perform in
or contribute to society.
130. Sexual orientation is a core, defining trait that is so fundamental to one's
identity and conscience that a person may not legitimately be required to abandon it (even if that were possible) as a condition of equal treatment.
131. Sexual orientation generally is f,rxed at an early age and highly resistant to
change through intervention. No credible evidence supports the notion that interventions
are effective or safe; indeed, they often are harmful and damaging. No mainstream
mental health professional organization approves interventions intended to change sexual
orientation, and almost all of them have adopted policy statements cautioning
professionals and the public against these treatments.
39

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 41 of 49 PageID #: 41
I32. Prejudice against gay men and lesbians continues to curtail the operation of
political processes that might ordinarily be relied upon to protect minorities. Lesbians and
gay men have fewer civil rights protections at the state and federal level than racial
minorities and women had when race and sex-based classifications were declared to be suspect and quasi-suspect, respectively.
133. Lesbians and gay men lack express statutory protection against
discrimination in employment, public accommodations, and housing at the federal level and in more than half the states, including South Dakota. They are systematically underrepresented in federal, state, and local democratic bodies. They have been denied the right to marry through 30 state constitutional amendments and currently are not permitted to marry in 33 states.
Díscriminøtion Based on Sex.
134. The State's marriage bans discriminate against Plaintiffs on the basis of sex, both facially and as applied, baning Plaintiffs from marriage or from recognition of
their lawful marriages solely because each Plaintiff wants to be married to or married a spouse of the same sex. The sex-based restriction is plain on the face of the State's maniage bans, which restrict marriage to a "man and woman" and deny recognition of relationships involving people of "the same gender."
135. Because of these sex-based classifications, South Dakota prohibited Named
Plaintiffs Jennie and Nancy Rosenbrahn and Named Plaintiffs Jeremy Coller and Clay Schweitzer-and is presently prohibiting Named Plaintiffs Krystal Cosby and Kaitlynn
Hoerner-from marrying their devoted life partners because they are the same sex;
40

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 42 of 49 PageID #: 42
individually, if these Plaintiffs were the opposite sex, they could marry their partner in
South Dakota. Named Plaintiffs Jennie and Nancy Rosenbrahn, Named Plaintiffs Jeremy Coller and Clay Schweitzer, Named Plaintiffs Lynn and Monica Serling-Swank, Named Plaintiffs Barbara and Ashley Wright, and Named Plaintiffs Greg Kniffen and Mark Church are precluded from having their marriages recognized as valid because they are
not the opposite sex of their partners; individually, if these Plaintiffs were the opposite
sex, South Dakota would recognize their lawful marriages.
136. The State's marriage bans also serve the impermissible purpose of
enforcing and perpetuating sex stereotypes by excluding Plaintiffs from marriage or from being recognized as lawfully married because Plaintiffs have failed to conform to sexbased stereotypes that men should marry women, and women should marry men.
I37. Because there are no longer legal distinctions between the duties of
husbands and wives, there is no basis for the sex-based eligibility requirements for
marriage.
138. The exclusion of Plaintiffs from marriage based on their sex and the
enforcement of gender-based stereotypes cannot survive the heightened scrutiny required for sex-based classifications in laws. Discrímínatíon wíth Respect to Fundømental Ríghts and Líberty Interests Secured by
the Due Process Clause.
I39. The State's marriage bans discriminate against Plaintiffs based on sexual
orientation and sex with respect to the exercise of the fundamental right to marry and
their liberfy interests in dignity, autonomy, and family integrity and association.
41

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 43 of 49 PageID #: 43
Differential treatment of Plaintiffs' exercise of fundamental rights and liberty interests
based on their sexual orientation and sex subjects Defendants' conduct to strict or at least heightened scrutiny, which Defendants' conduct cannot withstand.
Count II:
Deprivation of Due Process Fourteenth Amendment to the Uníted Støtes Constitution
140. Plaintiffs incorporate the allegations set forth in each of the preceding
paragraphs of this Complaint as if fully set forth herein.
I4I. Plaintiffs state this cause of action against Defendants in their official
capacities for purposes of seeking injunctive and declaratory relief.
I42. The Fourteenth Amendment to the United States Constitution, enforceable
pursuant to Title 42 U.S.C. $ 1983, provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, $ 1.
143. South Dakota's adoption of Amendment C and its implementation into
South Dakota Constitution Article 21 $ 9, Title 25 of South Dakota Codified Laws, and all other sources of South Dakota law that preclude maniage for same-sex couples or prevent recognition of their marriages violate the due process guarantee of the Fourteenth Amendment both facially and as applied to Plaintiffs.
I44. The right to marry the unique person of one's choice and to direct the
course of one's life in this intimate realm without undue govemment restriction is one of the fundamental liberty interests protected for all by the Due Process Clause of the Fourteenth Amendment. Defendants' enforcement of the marriage bans impermissibly
42

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 44 of 49 PageID #: 44
infringes on Plaintiffs' choice of whom to marry and their ability to have their marriages recognized, interfering with a core, life-altering, and constitutionally protected choice.
I45. The Due Process Clause also protects choices central to privacy, personal
dignity, and autonomy, including each individual's rights to family integrity and association. Defendants' enforcement of the marriage bans impermissibly infringes
Plaintiffs' intimate, personal, and private decisions about family life, and precludes Plaintiffs from obtaining full liberty, dignity, and security for themselves, their family,
and their parent-child bonds.
146. As the Secretary of Health, Defendant Hollingsworth enforces the marriage
bans by, among other things, prescribing, furnishing, and distributing forms that prohibit same-sex couples from marrying and forms that prohibit same-sex couples from having
their lawful out-of-state marnages recognized on birth and death certificates. These actions violate Plaintiffs' fundamental rights with respect to marriage and constitutional rights to liberty, dignity, autonomy, family integrity, association, and due process under the Fourteenth Amendment to the United States Constitution. This includes the rights of Plaintiffs who wish to marry and to have their existing marriages recognized, such as Named Plaintifß Barbara and Ashley Wright, who both want to be listed as parents on
the birth certificates of their planned children.
I47. As Registers of Deeds for Brown and Pennington Counties, Defendants
Mayer and Sherman ensure compliance with the marriage bans by, for example, denying same-sex couples maníage licenses. These actions violate the fundamental right to marry
and the rights, protected under the Fourteenth Amendment to the United States
43

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 45 of 49 PageID #: 45
Constitution, to liberty, dignity, autonomy, family integrity, association, and due process of Named Plaintiffs Krystal Cosby and Kaitlynn Hoerner.
148. As Attorney General, Defendant Jackley has enforced marriage bans by
enforcing, directing, and defending the bans.
I49. As Governor, Defendant Daugaard has enforced marriage bans by
overseeing and directing each of the Defendants and their acts, omissions, duties, and
responsibilities.
150. Defendants cannot satisff the Due Process Clause's decree that
governmental interference with a fundamental right or liberty interest may be sustained
only upon a showing that the burden is narrowly tailored to serve a compelling or
important governmental interest, because the marriage bans are not even tailored to any legitimate interest.
Count III:
Deprivation of Fundamental Right To Travel Fourteenth Amendment to the United Stutes Constitution
151. Plaintiffs incorporate the allegations set forth in each of the preceding
paragraphs of this Complaint as if fully set forth herein.
152. The Fourteenth Amendment protects the liberty of individuals to travel
throughout the nation, uninhibited by statuses, rules, or regulations that unreasonably burden or restrict their movement. This right guards against interference with citizens' rights "to migrate, resettle, find a new job, and start a new life." Shapiro v. Thompson. 394 U.S. 618, 629 (1969). The right to travel prohibits both laws that affirmatively interfere with or prevent a citizen's travel, and also laws that "penalizefe] those who
44

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 46 of 49 PageID #: 46
choose to" migrate to another state. Id. at 631. The right extends not only to temporary visits to other States, but also to becoming a pennanent resident of another State. Id.
153. Defendants' refusal, under color of State law, to respect the valid out-of-
state marriages of Plaintiffs and other same-sex couples unconstitutionally burdens and infringes on Plaintiffs' right to travel throughout the nation and to resettle and make a
new home in South Dakota. By conditioning Plaintiffs' move to South Dakota on relinquishment of all rights, benefits, and responsibilities of their marriages lawfully
celebrated in other States, the State has imposed a penalty on Plaintiffs' exercise of their
constitutionally protected right to travel. Defendants' actions therefore constitute a
"deprivation of the liberty of the person," Windsor, 133 S. Ct. at2695, protected by the Fourteenth Amendment. For this reason, South Dakota's adoption of Amendment C and
its implementation into South Dakota Constitution Article 2I ç 9, Title 25 of South
Dakota Codified Laws, and all other sources of South Dakota that preclude recognition of
marriages performed in other States or jurisdictions, are unconstitutional on their face and as applied to Plaintiffs.
I54. A law that has the effect of imposing a penalty on the exercise of the right
to travel is subject to strict scrutiny and may be upheld only upon a showing that the restriction is narrowly tailored to advance a compelling government interest. Defendants cannot satis$r this requirement; indeed, the challenged statutes are not even rationally related to the furtherance of a legitimate government interest.
155. Plaintiffs have no adequate remedy at law to dress the wrongs alleged
herein, which are of a continuing nature and will cause them irreparable harm.
45

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 47 of 49 PageID #: 47
156. Accordingly, Plaintiffs are entitled to declaratory and injunctive relief as
requested in this Complaint. Declaratory and Injunctive Relief Títle 28 U.S.C. SS 2201 and 2202;
Fed. R Cív. P., Rules 57 and 65
I57. This case presents an actual controversy because Defendants' present and
ongoing denial of due process, equal protection, and privileges or immunities subjects
Plaintiffs to serious and immediate harms, warranting the issuance of a declaratory
judgment.
158. Named Plaintiffs seek injunctive relief to protect their constitutional rights and avoid the injuries described above. A decision enjoining Defendants would redress and prevent irreparable injuries to Plaintiffs, for which Plaintiffs have no adequate
remedy at law or in equity.
159. The State will incur little to no burden in allowing same-sex couples to
matry and in recognizing the lawful marriages of same-sex couples from other
jurisdictions on the same terms as different-sex couples, while the hardship to Plaintiffs of being denied due process, equal protection, and privileges or immunities is severe, subjecting them to an irreparable denial of their constitutional rights. The balance of hardships thus tips strongly in favor of Plaintiffs.
PRAYER FOR RELIEF Plaintiffs request that this Court enter judgment:
A. Declaring that the provisions of and enforcement by Defendants of Amendment C, South Dakota Constitution Article 2l ç 9, Title 25 of South Dakota
46

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 48 of 49 PageID #: 48
Codified Laws, and all other sources of South Dakota law that prohibit same-sex couples from marrying or refuse recognition to South Dakota out-of-state marriages of same-sex spouses violate Plaintiffs' rights under the Fourteenth Amendment to the United States
Constitution;
B. Permanently enjoining enforcement by Defendants of Amendment C, South
Dakota Constitution Article 21 $ 9, Title 25 of South Dakota Codified Laws, and all other sources of South Dakota law that exclude same-sex couples from marriage or that refuse recognition to lawful out-oÊstate marriages of same-sex couples;
C. Requiring Defendants in their official capacities to permit issuance of
maniage licenses to same-sex couples and to recognize lawful out-of-state marriages of
same-sex couples, subject to the same restrictions and limitations applicable to differentsex couples;
D. Awarding Plaintiffs their costs, expenses, and reasonable attorneys' fees
pursuant to Title 42U.5.C. $ 1988 attd other applicable laws; and
E. Granting such other and further relief as the Court deems just and proper. F. The requested declaratory and injunctive relief is sought against each
Defendant; each Defendant's offrcers, employees, and agents; and all persons acting in
concert or participation with any Defendant, or under any Defendant's supervision,
direction, or control.
Respectfully submitted this 22nd day of May, 2014,
47

Case 4:14-cv-04081-KES Document 1 Filed 05/22/14 Page 49 of 49 PageID #: 49
Menn Lnw LLC
/s/Joshua A. Newville Joshua A. Newville* 345 Union Plaza 333 Washington Avenue North Minneapolis, Minnesota 5 540I Phone: (612)349-2743 Fax: (612) 235-3357 joshuanewville@madialaw. com * Pro hac vice applicationþrthcoming
Buno ANo Vorcr
Debra Voigt, SD/BDn{d 601 S. Cliff Ave, Suite A Sioux Falls, South Dakota 57103
Phone: (605) 332-4351 Fax: (605) 334-6844 debr a@burdandvo i gt. c om
Counselfor Pløintffi
48

 
 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

JENNIE ROSENBRAHN, NANCY ROSENBRAHN, JEREMY COLLER, CLAY SCHWEITZER, LYNN SERLING-SWANK, MONICA SERLING-SWANK, KRYSTAL COSBY, KAITLYNN HOERNER, BARBARA WRIGHT, ASHLEY WRIGHT, GREG KNIFFEN, and MARK CHURCH,
Plaintiffs,
vs.
DENNIS DAUGAARD, in his official capacity as Governor; MARTY JACKLEY, in his official capacity as Attorney General; DONEEN HOLLINGSWORTH, in her official capacity as Secretary of Health; TREVOR JONES, in his official capacity as Secretary of Public Safety; and CAROL SHERMAN, in her official capacity as Brown County Register of Deeds;
Defendants.

4:14-CV-04081-KES
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

Defendants move the court to dismiss all claims. Docket 10. Plaintiffs resist that motion. The court heard oral argument on October 17, 2014. For the following reasons, the court grants in part and denies in part the motion to dismiss.

BACKGROUND The facts, according to the complaint (Docket 1), are as follows: In 1996, the South Dakota legislature adopted SDCL 25-1-1, which declares in pertinent part, “Marriage is a personal relation, between a man and a woman . . . .” Four years later, the South Dakota legislature amended SDCL 25-1-38 to clarify that any marriage entered into in another state “except a marriage contracted between two persons of the same gender” is valid in South Dakota. In 2006, South Dakota voters approved Amendment C to the South Dakota Constitution, which reads: Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota. S.D. Const. art. 21 § 9. Plaintiffs in this matter are six couples impacted by South Dakota’s marriage laws. Nancy and Jennie Rosenbrahn, both females, live in Rapid City, South Dakota. They have lived together for nearly thirty years and have numerous children and grandchildren. When they decided to marry, they were unable to obtain a marriage license in South Dakota. As a result, the Rosenbrahns traveled to Minnesota and were validly married according to that state’s laws. South Dakota does not recognize their marriage. Jeremy Coller and Clay Schweitzer also reside in Rapid City, South Dakota. They are a same-sex couple. Jeremy and Clay also applied for a South Dakota marriage license and were denied. They were married in Iowa in May 2014.
2

Lynn and Monica Serling-Swank live in Brandon, South Dakota, and have been in a same-sex relationship for over twelve years. They entered into a civil union in Connecticut in 2006, which was converted into a marriage in 2010. Subsequently, they moved to South Dakota to be closer to family. South Dakota does not recognize their marriage.
Krystal Cosby and Kaitlynn Hoerner reside in Aberdeen, South Dakota. They met in 2012 and have one child together, although Kaitlynn is not officially recognized as a parent because they are a same-sex couple. They also applied for a marriage license in South Dakota but were denied.
Barbara and Ashley Wright also live in Aberdeen. They are a same-sex couple. They met in 2012, and were lawfully married in Minnesota on September 20, 2013. They have six children from previous relationships, and Ashley will give birth to another in the fall of 2014. Their marriage is not recognized by South Dakota, nor is Barbara’s status as a parent of their expected child.
Greg Kniffen and Mark Church live in Sioux Falls, South Dakota. They have been together as a same-sex couple for eleven years, and they were legally married in Minnesota on October 11, 2013. South Dakota does not recognize their marriage.
Defendants in this matter are all officials for the state of South Dakota. Dennis Daugaard is the governor of South Dakota and enforces and executes all laws of the state. Marty Jackley is the Attorney General and is the chief legal officer of the state. Doneen Hollingsworth is the Secretary of Health and
3

oversees South Dakota’s vital records registration system. Trevor Jones is the Secretary of Public Safety and oversees South Dakota’s driver’s license service centers. Carol Sherman is the Brown County Register of Deeds, whose duties include issuing marriage licenses. Defendants have all been named as defendants in their official capacities due to their roles in enforcing South Dakota’s same-sex marriage ban.
On May 22, 2014, plaintiffs filed a complaint alleging that South Dakota’s same-sex marriage ban deprives them of their constitutional rights to equal protection, due process, and travel. Plaintiffs seek declarative and injunctive relief. Docket 1. Defendants moved to dismiss the complaint. Docket 10. Plaintiffs then moved for summary judgment (Docket 20) and filed a joint brief in support of that motion and in opposition to the motion to dismiss. Docket 23; Docket 24. The court granted defendants’ motion to extend the deadline for its response to plaintiffs’ summary judgment motion until ten days after the court rules on the pending motion to dismiss.
LEGAL STANDARD Rule 8 requires a plaintiff to plead “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Hamilton v. Palm, 621 F.3d 816,
4

817 (8th Cir. 2010) (clarifying that “Twombly and Iqbal did not abrogate the notice pleading standard of Rule 8(a)(2)”).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The court determines plausibility by considering only the materials in the pleadings and exhibits attached to the complaint, drawing on experience and common sense and viewing the plaintiff’s claim as a whole. Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003)). At the motion to dismiss stage, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in favor of the nonmoving party. Freitas v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 438 (8th Cir. 2013) (quoting Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012)).
Plaintiffs submitted fifteen exhibits in conjunction with their motion for summary judgment. See Docket 21. A motion made pursuant to Rule 12(b)(6) is limited to the initial pleadings. Brooks v. Midwest Heart Grp., 655 F.3d 796, 799-800 (8th Cir. 2011). “If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment . . . . All parties must be
5

given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).
If material beyond the pleadings is offered in conjunction with a Rule 12(b)(6) motion, the court may convert the motion to a motion for summary judgment, or it may “reject [any material outside the pleadings] or simply not consider it.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2004) [hereinafter Wright & Miller]; see also Casazza v. Kiser, 313 F.3d 414, 417-18 (8th Cir. 2002) (reiterating that a district court does not convert a Rule 12(b)(6) motion to a motion for summary judgment if the court does not rely upon matters outside the pleadings). “In adjudicating Rule 12(b) motions, courts are not strictly limited to the four corners of complaints.” Dittmer Props. L.P. v. F.D.I.C., 708 F.3d 1011, 1021 (8th Cir. 2013) (citing Outdoor Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d 1115, 1120 (8th Cir. 2011)). “ ‘[T]he court generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings.’ ” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (quoting Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)). The court may also consider matters incorporated by reference into the complaint without converting a Rule 12(b)(6) motion to a summary judgment motion. Id. at 931 n.3 (quoting 5B Wright & Miller § 1357). The decision to convert the motion or to exclude the material beyond the pleadings is wholly discretionary. 5C Wright & Miller § 1366.
6

In determining this motion, the court has considered the complaint, the text of the relevant South Dakota statutes and constitutional provision, and the briefs1 and oral arguments of the parties. Because the court has limited the materials considered to the pleadings and other materials embraced by the pleadings, defendants’ motion to dismiss is not converted to a motion for summary judgment.
DISCUSSION Recently, many federal courts have seen challenges centering on the constitutional validity of state same-sex marriage bans. With few exceptions, those courts have found that denying same-sex couples the right to marry violates the Constitution. Some courts have recognized that same-sex marriage bans impermissibly deprive same-sex couples of the fundamental right to marry. See, e.g., Bostic v. Schaefer, 760 F.3d 352, 384 (4th Cir. 2014) (“The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”). Other courts have found that same-sex marriage bans classify citizens in a way that has no rational relationship to a legitimate government objective. See, e.g., Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) (holding that same-sex marriage bans in Indiana and Wisconsin denied same-sex couples equal protection of 1 Plaintiffs’ brief is a joint brief opposing defendants’ motion to dismiss and supporting plaintiffs’ motion for summary judgment. The court has considered the parts of the brief relevant to the motion to dismiss.
7

the law because they classified citizens in a way that bore no rational relationship to any legitimate government purpose). Whether decided under the framework of due process or equal protection, federal courts have recognized that same-sex marriage bans pose important constitutional questions and present a claim upon which relief can be granted to same-sex couples. I. Precedent
Defendants argue that this court should not follow the other federal courts which recognize that challenges to same-sex marriage bans state a claim for relief because specific caselaw in the Eighth Circuit prevents such claims. Defendants’ argument centers on two decisions: Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006); and Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed by Baker v. Nelson, 409 U.S. 810 (1972).
In Bruning, three public interest groups whose members included gay and lesbian citizens challenged an amendment to the Nebraska Constitution that prohibited and refused to recognize same-sex marriage. Bruning, 455 F.3d at 863. Relying on Romer v. Evans, 517 U.S. 620 (1996),2 the plaintiffs argued that the amendment deprived same-sex couples of equal footing in the political
2 In Romer, the Supreme Court held that a Colorado law which barred state and local governments from allowing sexual orientation to be the basis for a claim of minority or protected status or discrimination was “a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Romer, 517 U.S. at 635.
8

arena and created an insurmountable barrier to their participation in the political process. Id. at 865. The Eighth Circuit rejected the plaintiffs’ argument for heightened scrutiny, noting that “there is no fundamental right to be free of the political barrier a validly enacted constitutional amendment erects.” Id. at 868. The Bruning plaintiffs “d[id] not assert a right to marriage or same-sex unions.” Id. The Eighth Circuit held that, for equal protection purposes, sexual orientation is not a suspect classification. Id. at 866. Thus, the panel applied the highly deferential rational-basis review standard and found that Nebraska’s constitutional amendment was “rationally related to the government interest in ‘steering procreation into marriage.’ ” Id. at 867.
Baker was a mandatory appeal to the United States Supreme Court of a decision by the Minnesota Supreme Court, pursuant to 28 U.S.C. § 1257(2) (repealed).3 Two men applied for a marriage license in Hennepin County and were denied on the sole grounds that they were of the same gender. Baker, 191 N.W.2d at 185. The Minnesota Supreme Court interpreted Minnesota’s statute authorizing marriage licenses as only permitting marriage between a man and a woman, and then held that such a classification did not violate the due process or equal protection guarantees of the Constitution. Id. at 186-87. On
3 28 U.S.C. §1257(2) provided for mandatory review in the Supreme Court when a case involved the validity of a state statute contested under federal law and the highest court of the state upheld the state statute. See 28 U.S.C.A. § 1257 commentary on 1988 revision. This law was repealed in 1988 by the Supreme Court Case Selections Act. See Public Law No. 100-352 (effective June 27, 1988).
9

appeal, the United States Supreme Court stated only that “[t]he appeal is dismissed for want of a substantial federal question.” Baker, 409 U.S. at 810.
Defendants argue that Bruning, which applied rational basis review to Nebraska’s constitutional amendment prohibiting same-sex marriage, forecloses a finding that sexual orientation is a suspect class or that same-sex marriage is a fundamental right. Similarly, defendants argue that by dismissing the appeal in Baker “for want of a substantial federal question,” the Supreme Court held that same-sex marriage is not a fundamental right. Read together, defendants contend that the court must apply rational basis review, and because the Eighth Circuit found a rational basis for an almost identical constitutional amendment in Bruning, there is no set of facts that could entitle plaintiffs to relief.
A. Baker The summary dismissal in Baker is precedential and is a decision on the merits. See Hicks v. Miranda, 422 U.S. 332, 344 (1975); McConnell v. Nooner, 547 F.2d 54, 56 (8th Cir. 1976) (stating that Baker “constitutes an adjudication of the merits which is binding on the lower federal courts”). The question presented in Baker, “whether same-sex marriage may be constitutionally restricted by the states,” is the same question presented in this case. See Windsor v. United States, 699 F.3d 169, 178 (2d Cir. 2012) aff’d, 133 S. Ct. 2675 (2013). “ ‘[U]nless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal
10

developments indicate otherwise[.]’ ” Hicks, 422 U.S. at 344 (quoting Port Auth. Bondholders Protective Comm. v. Port of New York Auth., 387 F.2d 259, 263 n.3 (2d Cir. 1967) (emphasis added)).
On appeal in Windsor, the Supreme Court was presented with a challenge to section 3 of the Defense of Marriage Act (DOMA), which defined marriage as between one man and one woman for purposes of federal law. United States v. Windsor, 133 S. Ct. 2675, 2683 (2013). As the Supreme Court noted, DOMA was a federal policy that withdrew protections granted by a state to a class of people historically disadvantaged on an issue traditionally left to states to regulate. See id. at 2692 (“The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.”).
Although the opinion discussed principles of federalism at length, the underpinning of the Supreme Court’s decision was “whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment.” Id. “The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Id. at 2693 (quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534-35 (1973)). The Supreme
11

Court stated that DOMA’s effect of making a subset of marriages unequal from others “places same-sex couples in an unstable position of being in a secondtier marriage. The differentiation demeans the couple whose moral and sexual choices the Constitution protects[.]” Id. at 2694 (emphasis added) (citing Lawrence v. Texas, 539 U.S. 558 (2003)). Ultimately, the Court found that even though Congress has the power to “design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment. . . . This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.” Id. at 2695.4 In doing so, the Court found that there was no legitimate purpose sufficient to overcome the negative impact DOMA had on same-sex couples. Id. at 2696.
Following the Supreme Court’s decision in Windsor, numerous courts have questioned whether Baker is still binding. This court has the benefit of reviewing those decisions. A significant majority of courts have found that Baker is no longer controlling in light of the doctrinal developments of the last forty years.5 Those courts have relied on Supreme Court decisions postdating
4 The Court noted at the end of its opinion that its holding was limited to lawful marriages that states had sought to protect. Windsor, 133 S. Ct. at 2696. Nonetheless, the Court’s elucidation of constitutional rights applies equally to the states because, even though the states have the general power to regulate domestic relations, they must still comply with the Constitution. See id. at 2691 (citing Loving v. Virginia, 388 U.S. 1 (1967)).
5 See Latta v. Otter, Nos. 14-35420, 14-35421, 12-17668, 2014 WL 4977682, at *3 (9th Cir. Oct. 7, 2014) (“As any observer of the Supreme Court cannot help but realize, this case and others like it present not only substantial
12

but pressing federal questions.”); Baskin, 766 F.3d at 660 (“Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned. Subsequent decisions . . . make clear that Baker is no longer authoritative.”); Bostic, 760 F.3d at 373-75 (“In light of the Supreme Court’s apparent abandonment of Baker and the significant doctrinal developments that occurred after the Court issued its summary dismissal in that case, we decline to view Baker as binding precedent . . . .”); Kitchen v. Herbert, 755 F. 3d 1193, 1208 (10th Cir. 2014) (“Although reasonable judges may disagree on the merits of the same-sex marriage question, we think it is clear that doctrinal developments foreclose the conclusion that the issue is, as Baker determined, wholly insubstantial.”); Windsor, 699 F.3d at 178 (“Even if Baker might have had resonance for Windsor’s case in 1971, it does not today.”), aff’d, 133 S. Ct. 2675 (2013); Brenner v. Scott, 999 F. Supp. 2d 1278, 1291 (N.D. Fla. 2014) (“[I]intervening doctrinal developments . . . have sapped Baker’s precedential force.”); Love v. Beshear, 989 F. Supp. 2d 536, 541-42 (W.D. Ky. 2014) (“Today, it is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge. Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape.”) rev’d sub nom. DeBoer v. Snyder, 2014 U.S. App. LEXIS 21191 (6th Cir. Nov. 6, 2014); Baskin v. Bogan, 12 F. Supp. 3d 1144, 1155 (S.D. Ind. 2014) (“These developments strongly suggest, if not compel, the conclusion that Baker is no longer controlling and does not bar the present challenge to Indiana’s laws.”), aff’d, 766 F.3d 648 (7th Cir. 2014); Wolf v. Walker, 986 F. Supp. 2d 982, 990 (W.D. Wis. 2014) (“It would be an understatement to say that the Supreme Court’s jurisprudence on issues similar to those raised in Baker has developed substantially since 1972.”), aff’d sub nom. Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Whitewood v. Wolf, 992 F. Supp. 2d 410, 419 (M.D. Pa. 2014) (“[W]e . . . no longer consider Baker v. Nelson controlling due to the significant doctrinal developments in the four decades that have elapsed since it was announced by the Supreme Court.”); Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1133 n.1 (D. Or. 2014) (“[T]he Court’s summary order in Baker yields no lasting precedential effect in 2014.”); Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 1909999, at *9 (D. Idaho May 13, 2014) (“Consistent with the findings of its sister courts, the Court concludes that Baker is not controlling and does not bar review of Plaintiffs’ claims.”), aff’d, 2014 WL 4977682 (9th Cir. Oct. 7, 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757, 773 n.6 (E.D. Mich. 2014) (“Baker no longer has any precedential effect.”) rev’d 2014 U.S. App. LEXIS 21191 (6th Cir. Nov. 6, 2014); De Leon v. Perry, 975 F. Supp. 2d 632, 647 (W.D. Tex. 2014) (“[S]ubsequent doctrinal and societal developments since 1972 compel this Court to conclude that the summary dismissal in Baker is no longer binding, and that the issue of same-sex marriage now presents a substantial federal question.”); Bostic v. Rainey, 970 F. Supp. 2d 456, 469 (E.D. Va. 2014) (“This Court concludes that doctrinal developments . . . compel the conclusion that Baker is no longer binding.”), aff’d sub nom. Bostic v.
13

Baker, particularly Romer, Lawrence, and Windsor, to conclude that the
question summarily dismissed in Baker is now a substantial federal question.
Nonetheless, some courts have recently concluded that Baker is still
binding precedent. Most recently, a panel of the Sixth Circuit Court of Appeals
overturned district court decisions in four states which had struck down same-
sex marriage laws. DeBoer v. Snyder, Nos. 14-1341; 3057; 3464; 5291; 5297;
5818, 2014 U.S. App. LEXIS 21191 (6th Cir. Nov. 6, 2014). The Sixth Circuit
stated that applying the doctrinal developments exception laid out in Hicks
“would be a groundbreaking development of its own.” Id. at *29. Because
summary dismissals are decisions on the merits, the Sixth Circuit concluded:
Just two scenarios, then, permit us to ignore a Supreme Court decision, whatever its form: when the Court has overruled the decision by name (if, say, Windsor had directly overruled Baker) or when the Court has overruled the decision by outcome (if, say, Hollingsworth [v. Perry, 133 S. Ct. 2652 (2013)] had invalidated the California law without mentioning Baker).
Id. at *30. While that may be true with respect to full opinions of the Supreme
Court, a summary disposition “is not here ‘of the same precedential value as
would be an opinion of this Court treating the question on the merits.’ ” Tully v.
Griffin, Inc., 429 U.S. 68, 74 (1976) (quoting Edelman v. Jordan, 415 U.S. 651,
Schaefer, 760 F.3d 352 (4th Cir. 2014); McGee v. Cole, 993 F. Supp. 2d 639, 650 (S.D. W. Va. 2014) (“Doctrinal developments since Baker, however, do justify a finding that Baker is nonbinding.”); Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1276 (N.D. Okla. 2014) (describing doctrinal developments since Baker and concluding “this is the type of erosion over time that renders a summary dismissal of no precedential value”), aff’d sub nom. Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 11194-95 (D. Utah 2013) (“[S]everal doctrinal developments . . . demonstrate that the Court’s summary dismissal in Baker has little if any precedential effect today.”), aff’d, 755 F. 3d 1193 (10th Cir. 2014).
14

671 (1974)). The Sixth Circuit’s reading of the doctrinal developments exception is too narrow and would effectively eliminate that exception by requiring either an explicit or implicit overruling of a prior decision. Furthermore, it is difficult to reconcile the Supreme Court’s statement in Windsor that the Constitution protects the moral and sexual choices of homosexual couples, Windsor, 133 S. Ct. at 2694, with the idea that state laws prohibiting same-sex marriage do not present a substantial federal question. Thus, the Sixth Circuit’s reasoning is not as persuasive as the reasoning of the Second, Fourth, Seventh, Ninth, and Tenth Circuits on this issue.
In Massachusetts v. U.S. Department of Health and Human Services, 682 F.3d 1 (1st Cir. 2012), the First Circuit was presented with a challenge to DOMA. The court cited Baker and concluded that “Baker does not resolve our own case but it does limit the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage.” Id. at 8. The court applied rational basis review and concluded, “without resort to suspect classifications or any impairment of Baker, that the rationales offered do not provide adequate support for section 3 of DOMA.” Id. at 15. Massachusetts v. HHS was decided before Windsor, so it did not take into account the significant doctrinal development contained in Windsor. Additionally, the First Circuit did not discuss the doctrinal developments exception, likely because the court reached its conclusion without confronting the question of Baker’s viability. For those reasons, Massachusetts v. HHS is not persuasive on this issue.
15

Recently, a district court in Puerto Rico found that Baker still controlled. See Conde-Vidal v. Garcia-Padilla, Civil No. 14-1253 (PG), 2014 WL 5361987, at *4-10 (D.P.R. Oct. 21, 2014). Because Puerto Rico is in the First Circuit, the Puerto Rico district court determined that it was bound to follow Massachusetts v. HHS. See id. at *6. This court is not in the First Circuit and as a result is not bound by Massachusetts v. HHS. Additionally, because Massachusetts v. HHS was decided before Windsor, it is not as persuasive as the authority that concludes that Baker is no longer controlling.6 Other courts that upheld same-sex marriage bans have done so without addressing Baker. See Robicheaux v. Caldwell, 2 F. Supp. 3d 910, 922 n.14 (E.D. La. 2014) (“The Court need not enter the differing contentions about the viability of Baker v. Nelson.”); Merritt v. Attorney General, Civil Action No. 13-00215-BAJ-SCR, 2013 WL 6044329, at *2 (M.D. La. Nov. 14, 2013) (stating, without explanation, that “the Constitution does not require States to permit same-sex marriages.” (citing Baker, 409 U.S. 810)).
This court agrees with the five courts of appeals and numerous district courts listed above which found that recent Supreme Court decisions constitute doctrinal developments which render Baker without precedential value. That conclusion is strengthened by the Supreme Court’s silence on Baker’s continued viability. Although the Second Circuit held in Windsor that
6 Other cases relying on Massachusetts v. HHS are equally unpersuasive because they do not account for the impact of Windsor. See Kitchen, 755 F.3d at 1231-33 (Kelly, J., dissenting) (citing Massachusetts v. HHS as support for the conclusion that subsequent doctrinal developments have not undermined Baker’s force).
16

Baker did not control, see Windsor, 699 F.3d at 178, the Supreme Court’s majority opinion and the dissents failed to discuss Baker or its application to this case. If the Supreme Court believed that Baker was still controlling, the Court could simply and quickly have disposed of Windsor.
Similarly, in Hollingsworth, a companion case to Windsor, the Supreme Court concluded that proponents of a California law prohibiting same-sex marriage did not have standing and consequently the Court did not reach the merits of the case. Notably, the Court did not dismiss the case for want of a substantial federal question. In fact, during oral arguments in Hollingsworth, Justice Ginsburg stated, “Mr. Cooper, Baker v. Nelson was 1971. The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. . . . And the same sex intimate conduct was considered criminal7 in many States in 1971, so I don’t think we can extract much in Baker v. Nelson.” Hollingsworth v. Perry, No. 12-144, 2013 WL 1212745, at *12 (U.S. Mar. 26, 2013) (oral argument transcript) (footnote added).
Defendants contended during oral argument that the Eighth Circuit adopted Baker in Bruning, and that Baker is therefore binding on this court even though other courts found that Baker was displaced by subsequent doctrinal developments. Bruning cites Baker once in its conclusion section:
In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the
7 Not only was such conduct considered criminal, but “[i]n 1973, the American Psychiatric Association still defined homosexuality as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders (DSMII)[.]” Kitchen, 961 F. Supp. 2d at 1200.
17

Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson, when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.”
Bruning, 455 F.3d at 870 (emphasis in original) (citation omitted). This passage
in Bruning merely recognizes the decision in Baker. Absent from the Bruning
opinion, however, is any discussion of the continued validity of Baker or the
doctrinal development exception.8 Despite defendants’ contention, Bruning does
not compel this court to follow Baker.
The Supreme Court’s equal protection and due process doctrines have
evolved substantially since Baker was decided, particularly those doctrines as
applied to homosexual citizens. As has been recognized by the Second, Fourth,
Seventh, Ninth, and Tenth Circuits and numerous district courts following
Windsor, this court concludes that Baker is no longer binding authority.
B. Bruning
Prior to Windsor, the Eighth Circuit addressed the constitutionality of a
Nebraska constitutional amendment prohibiting same-sex marriage. See
Bruning, 455 F.3d at 863. District courts within the Eighth Circuit are bound
to follow decisions of the Eighth Circuit Court of Appeals. See, e.g., Hood v.
United States, 342 F.3d 861, 864 (8th Cir. 2003).
8 Even if Bruning discussed the doctrinal development exception, that discussion would be incomplete because Bruning was decided in 2006, seven years before Windsor fundamentally altered the landscape of the same-sex marriage debate.
18

Bruning was framed as an equal protection case based on a fundamental right of access to the political process. The Eighth Circuit held that even though access to the political process is a fundamental right, “there is no fundamental right to be free of the political barrier a validly enacted constitutional amendment erects.” Bruning, 455 F.3d at 868. The panel based its conclusion on the reality that “[i]n a multi-tiered democracy, it is inevitable that interest groups will strive to make it more difficult for competing interest groups to achieve contrary legislative objectives” and that “chaos . . . would result if all enactments that allegedly deprive a group of ‘equal’ political access must survive the rigors of strict judicial scrutiny.” Id. at 866. The Eighth Circuit also noted that sexual orientation was not a suspect class under existing Supreme Court precedent. Id. at 866-67. Because there was no suspect classification and no fundamental right at stake, the Eighth Circuit applied rational basis review and upheld Nebraska’s constitutional provision. Id. at 867-68.
Bruning holds that, under the Eighth Circuit’s interpretation of Supreme Court precedent, sexual orientation is not a suspect class. But that holding does not resolve the matter before this court. More relevant to the case at bar is what Bruning does not address: due process or a fundamental right to marriage. The Eighth Circuit directly stated in Bruning that “[a]ppellees do not assert a right to marriage or same-sex unions.” Id. at 865. Consequently, Bruning does not address whether marriage, or same-sex marriage, is a
19

fundamental right.9 Therefore, Bruning does not compel this court to apply only
rational basis review. Because the court is not bound to apply rational basis
review, Bruning’s determination that Nebraska’s constitutional provision was
rationally related to legitimate government objectives does not demonstrate
that plaintiffs here are not entitled to relief.
Defendants argue that because Bruning applied rational basis review to a
constitutional provision prohibiting same-sex marriage, the panel impliedly
concluded that there is no fundamental right to same-sex marriage. See Docket
11 at 6. But that reading of Bruning is far too broad. Bruning’s discussion of
the fundamental right at hand is expressly limited to the fundamental right of
access to the political process. Bruning, 455 F. 3d at 865. The Eighth Circuit’s
application of rational basis review was premised upon its finding that there
was not a fundamental right to be free of validly enacted political barriers, not
that there was not a fundamental right to marry. Id. at 868. Additionally, the
Eighth Circuit’s rejection of strict scrutiny was based on the difficulty inherent
in heightened judicial review of all political access questions. That rationale
does not apply to reviewing a right to marry. Given the clear framing of the
9 In fact, Bruning only addresses marriage as a “package of government benefits and restrictions that accompany the institution of formal marriage” which the state “may rationally choose not to expand in wholesale fashion” as a matter of legislative convenience. Bruning, 455 F.3d at 868. This passage makes it clear that the Eighth Circuit was not considering marriage as a fundamental right, as described in Loving, 388 U.S. at 12 (“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness . . . .”), but was only examining marriage as any other benefit which can be extended or denied through the political process.
20

right at stake in Bruning and the reasoning applied by the panel, Bruning does not extend to holding that there is no fundamental right to marriage.
Bruning is not dispositive of the central issue before this court, namely, whether plaintiffs can establish a deprivation of their due process or equal protection rights based on a fundamental right to marriage. Accordingly, Bruning does not preclude plaintiffs from relief as a matter of law. II. Due Process
“[A]ll fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 846-47 (1992) (quotation omitted). The Due Process Clause “forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993) (emphasis in original) (internal quotations omitted). A fundamental right is a right that is “objectively, deeply rooted in this Nation’s history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). In evaluating a substantive due process claim, a court must provide a “careful description of the asserted fundamental liberty interest” to minimize the subjectivity inherent in judicial review of due process. Id. at 721.
Plaintiffs argue that they have a fundamental right to marry, and that South Dakota law deprives them of that fundamental right. Defendants argue
21

that Bruning and Baker stand for the proposition that there is no fundamental right to same-sex marriage and that those decisions compel this court to apply rational basis review. Furthermore, defendants argue that Bruning found there is a rational basis for such laws, which finding is also binding on this court. Because Baker no longer has precedential value, and because Bruning did not address either due process or a fundamental right to marriage, plaintiffs are not consigned to rational basis review and have a plausible claim for relief with respect to their due process argument. III. Equal Protection
The Fourteenth Amendment requires that states afford all citizens the equal protection of the laws. U.S. Const. amend. XIV. “As a threshold matter, in order ‘[t]o state an equal protection claim, [a plaintiff] must have established that he was treated differently from others similarly situated to him.’ ” Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir. 2004) (quoting Johnson v. City of Minneapolis, 152 F.3d 859, 862 (8th Cir. 1998)). If a statute treats citizens differently based on a suspect classification or involves a fundamental right, the challenged law receives heightened scrutiny. All other classifications will be upheld “if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 320 (1993).
22

A. Fundamental Right If a classification “impinge[s] upon the exercise of a fundamental right,” the Equal Protection Clause requires “the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 216-17 (1982) (quotation omitted). For reasons stated with respect to plaintiffs’ due process claim, the complaint states a plausible equal protection claim based on the alleged deprivation of a fundamental right where plaintiffs allege the classification is not precisely tailored to serve a compelling governmental interest. B. Gender When a law is based on a gender classification, “[t]he State must show ‘at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’ ” United States v. Virginia, 518 U.S. 515, 533 (1996) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). Defendants argue that the complaint fails to establish a plausible claim for relief based on gender discrimination because South Dakota law simply does not classify individuals based on gender. Docket 11 at 14-15. But an express classification is not necessary to state a claim for relief. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 274 (1979) (“When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionably adverse, a twofold inquiry is thus appropriate. The first
23

question is whether the statutory classification is indeed neutral in the sense that it is not gender-based. If the classification itself . . . is not based upon gender, the second question is whether the adverse effect reflects invidious gender-based discrimination.”) (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)).
The fact that a statute imposes identical disabilities on men and women does not foreclose a claim that the statute discriminates based on gender. See Latta v. Otter, 2014 WL 4977682, at *16 (9th Cir. Oct. 7, 2014) (Berzon, J., concurring) (“In concluding that these laws facially classify on the basis of gender, it is of no moment that the prohibitions treat men as a class and women as a class equally and in that sense give preference to neither gender, as the defendants fervently maintain.” (internal quotations and footnote omitted)). In Loving, the Supreme Court rejected a similar argument that antimiscegenation statutes did not discriminate based on race because the statute applied equally to blacks and whites. See Loving v. Virginia, 388 U.S. 1, 8 (1967). Because South Dakota’s law, for example, prohibits a man from marrying a man but does not prohibit that man from marrying a woman, see Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1206 (D. Utah 2013), the complaint has stated a plausible claim for relief.
At this stage—a motion to dismiss—the court finds that the complaint sufficiently states a claim for relief because it plausibly shows a classification related to gender. Even though several courts have rejected the argument that same-sex marriage bans discriminate based on gender because the plaintiffs
24

did not present sufficient evidence of invidious gender discrimination to prevail
on their claim,10 the complaint should still survive a Rule 12(b)(6) motion. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (“Of course, a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those
facts is improbable.”).
C. Sexual Orientation
Bruning holds that sexual orientation is not a suspect classification. See
Bruning, 455 F.3d at 866-67. But even if that is the correct standard and no
other basis for the application of heightened scrutiny is proven, plaintiffs would
still be entitled to relief if they could show that the challenged laws bear no
rational relationship to a legitimate government purpose. At this point in the
litigation, defendants have articulated no potential legitimate purpose. Instead,
they rely on the finding in Bruning that the Nebraska law survived rational
basis review. Even though the Eighth Circuit found that Nebraska’s
constitutional provision survived rational basis review, that conclusion does
not compel a finding that South Dakota’s laws are, as a factual matter,
10 See Baskin, 2014 WL 2884868, at *11 (“[T]he court finds no evidence of an invidious gender-based discrimination here.”); Wolf, 986 F. Supp. 2d. at 1008 (rejecting a gender discrimination theory because “the intent of laws banning same-sex marriage is not to suppress females or males as a class”); Whitewood, 992 F. Supp. 2d at 425 n.9 (finding that “the intentional discrimination occurring in this case has nothing to do with gender-based prejudice or stereotypes”); Geiger, 994 F. Supp. 2d at 1140 (“There is no such invidious gender-based discrimination here.”); Latta, 2014 WL 1909999, at *15 (“[T]here is no evidence that [Idaho’s marriage laws] were motivated by a gender discriminatory purpose.”); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1005 (D. Nev. 2012) (applying the level of scrutiny applicable to sexual orientation classifications because there was no indication of any gender-based animus).
25

rationally related to the same purpose.11 Such a determination should not be
made at the motion to dismiss stage.
IV. Right to Travel
The Supreme Court has described the right to travel as being comprised
of at least three components:
[The right to travel] protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.
Saenz v. Roe, 526 U.S. 489, 500 (1999). “Because travel is a fundamental right,
‘any classification which serves to penalize the exercise of that right, unless
shown to be necessary to promote a compelling governmental interest, is
unconstitutional.’ ” Minn. Senior Fed’n v. United States, 273 F.3d 805, 809 (8th
Cir. 2001) (emphasis in original) (quoting Shapiro v. Thompson, 394 U.S. 618,
634 (1969)).
Plaintiffs argue that South Dakota has penalized them for electing to
travel by stripping them of the marital status they obtained in other states.
Thus, plaintiffs contend, same-sex marriage bans create:
[T]wo Americas for married same-sex couples—a group of states where it is safe for them to travel or move with their families and a second group of states, including South Dakota, where they cannot travel or reside without being stripped of their marital status and losing any protection as a legal family. Such a severe and
11 Courts have applied rational basis review to same-sex marriage bans and found that the statutes were not rationally related to a legitimate government objective. See, e.g., Baskin, 766 F.3d 648.
26

deliberate penalty on interstate migration violates the right to travel in the most direct and fundamental way. Docket 24 at 45-46 (italics in original). The burdens identified by plaintiffs, however, apply equally to new citizens and existing citizens of South Dakota. The plaintiffs who were citizens of South Dakota before getting married in another state—Nancy and Jennie Rosenbrahn, Jeremy Coller and Clay Schweitzer, Barb and Ashley Wright, and Greg Kniffen and Mark Church—are treated the same as Lynn and Monica Serling-Swank, who were citizens of another state and moved to South Dakota after getting married. In both scenarios, South Dakota has refused to recognize the marriages because they are same-sex marriages, not based on whether the individuals were citizens of South Dakota. The burdens put forth by plaintiffs also do not comport with other instances in which courts have found a violation of the right to travel. For example, the Supreme Court held that it was impermissible to deter the migration of needy persons by imposing a year-long prohibition on welfare assistance, see Shapiro, 394 U.S. 618, or on hospital care, see Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974). Nonetheless, when a new resident receives benefits at the same level as other residents of the state, it is not a penalty that those benefits are less generous than benefits in other states. See Minn. Senior Fed’n, 273 F.3d at 810. Although plaintiffs in this case may lose certain benefits when they move to South Dakota, the fact that they are treated the same as existing residents proves that South Dakota’s marriage laws do not operate as a penalty on the right to travel. Therefore, plaintiffs have
27

failed to state a claim that is plausible on its face with respect to their right to travel claim, and the motion to dismiss is granted on that claim.
CONCLUSION In 1972, the Supreme Court dismissed the constitutional question presented in Baker as insubstantial. 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. But plaintiffs have not established any impairment of their right to travel. Accordingly, it is ORDERED that the motion to dismiss (Docket 10) is denied with respect to Counts I and II, but granted with respect to Count III. IT IS FURTHER ORDERED that, consistent with the court’s order on defendants’ motion to extend the deadline to respond to plaintiffs’ motion for summary judgment (Docket 31), defendants will file a response to plaintiffs’ motion for summary judgment on or before November 24, 2014. Plaintiffs will then have 14 days to reply. Dated November 14, 2014.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
28

 
 Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 1 of 28 PageID #: 754

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

JENNIE ROSENBRAHN, NANCY ROSENBRAHN, JEREMY COLLER, CLAY SCHWEITZER, LYNN SERLING-SWANK, MONICA SERLING-SWANK, KRYSTAL COSBY, KAITLYNN HOERNER, BARBARA WRIGHT, ASHLEY WRIGHT, GREG KNIFFEN, and MARK CHURCH,

4:14-CV-04081-KES
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiffs,

vs.

DENNIS DAUGAARD, in his official capacity as Governor; MARTY JACKLEY, in his official capacity as Attorney General; DONEEN HOLLINGSWORTH, in her official capacity as Secretary of Health; TREVOR JONES, in his official capacity as Secretary of Public Safety; and CAROL SHERMAN, in her official capacity as Brown County Register of Deeds;

Defendants.

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, brought this action against defendants Dennis Daugaard, Marty Jackley,

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 2 of 28 PageID #: 755
Doneen Hollingsworth, Trevor Jones, and Carol Sherman in their official
capacities, alleging that South Dakota’s marriage laws violate the United States
Constitution. Plaintiffs move for summary judgment. Defendants resist that
motion and move for summary judgment in their favor. For the following
reasons, the court grants plaintiffs’ motion and denies defendants’ motion.
BACKGROUND
The undisputed facts1 are as follows:
South Dakota law prohibits same-sex marriage. SDCL 25-1-1 declares in
pertinent part, “Marriage is a personal relation, between a man and a
woman . . . .” SDCL 25-1-38 states that South Dakota recognizes as valid any
marriage entered into in another state “except a marriage contracted between
two persons of the same gender.” In 2006, South Dakota voters approved
Amendment C to the South Dakota Constitution, which reads:
Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota.
S.D. Const. art. 21 § 9.
1 Ordinarily, when ruling on a motion for summary judgment, the court views the facts in the light most favorable to the nonmoving party and determines whether there is a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). In this case, plaintiffs and defendants move for summary judgment, and both sides agree that the material facts in this action are undisputed. See Docket 24 at 18 (“Here, there are no material facts in dispute, and Plaintiffs are entitled to summary judgment as a matter of law.”); Docket 41 at 10 (“It is clear from the Parties’ filings that there are no material facts in dispute in this case. The constitutional issues before the Court solely involve issues of law.”).
2

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 3 of 28 PageID #: 756
Plaintiffs are six same-sex couples impacted by South Dakota’s marriage laws. Nancy and Jennie Rosenbrahn live in Rapid City, South Dakota. They have lived together for nearly thirty years and have numerous children and grandchildren. When they decided to marry, they were unable to obtain a marriage license in South Dakota. With the exception of being a same-sex couple, they meet all other requirements for a valid marriage in South Dakota. The Rosenbrahns were validly married in Minnesota, but South Dakota does not recognize their marriage. As a consequence, the Rosenbrahns state that they have endured indignity and humiliation. Additionally, Nancy may be unable to inherit the couple’s mobile home park in the event Jennie dies, and the couple has incurred expenses associated with attempts to replicate the legal protections automatically extended to opposite-sex married couples.
Jeremy Coller and Clay Schweitzer also reside in Rapid City, South Dakota. Jeremy and Clay applied for a South Dakota marriage license and were denied. Except for the fact that they are a same-sex couple, Jeremy and Clay met all the requirements for marriage in South Dakota. They were married in Iowa in May 2014. The couple’s home is titled in Jeremy’s name, and Clay may be unable to inherit the home in the event of Jeremy’s death as he would if the couple could be legally married. Jeremy and Clay also desire to be treated with the same dignity and respect as opposite-sex couples.
Lynn and Monica Serling-Swank live in Brandon, South Dakota, and have been in a same-sex relationship for over twelve years. They entered into a civil union in Connecticut in 2006, which was converted into a marriage in
3

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 4 of 28 PageID #: 757
2010. Subsequently, they moved to South Dakota to be closer to family. South Dakota does not recognize their marriage. As a result, Lynn was unable to visit Monica in the hospital, and the couple has incurred significant legal costs to protect their assets and plan for their future. They also wish to have their relationship afforded the same protections and recognition as opposite-sex relationships.
Krystal Cosby and Kaitlynn Hoerner reside in Aberdeen, South Dakota. They met in 2012 and have one child together. They also applied for a marriage license in South Dakota but were denied. The couple is legally qualified to marry under South Dakota law with the sole exception that they are a samesex couple. They reported that the experience of being denied a marriage license was painful and humiliating. Additionally, South Dakota would not allow Kaitlynn to be listed as one of the parents on their daughter’s birth certificate. As a result, Krystal and Kaitlynn are attempting to obtain a secondparent adoption, but the availability of that procedure is unclear given the couple’s same-sex status.
Barbara and Ashley Wright also live in Aberdeen. They are a same-sex couple. They met in 2012, and were lawfully married in Minnesota on September 20, 2013. They have six children from previous relationships, and Ashley gave birth to another in the fall of 2014. Their marriage is not recognized by South Dakota. When opposite-sex married couples have a child, both spouses are presumed to be the child’s parents, but because Barbara and Ashley are a same-sex couple Barbara is unable to be listed on the child’s birth
4

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 5 of 28 PageID #: 758
certificate as a parent. The couple considers this unfair and demeaning. Barbara also reports that she was unable to change her driver’s license to reflect her married name, which made it difficult to secure employment as a truck driver because Barbara’s name on her social security card did not match the name on her driver’s license.
Greg Kniffen and Mark Church live in Sioux Falls, South Dakota. They have been together as a same-sex couple for eleven years, and they were legally married in Minnesota on October 11, 2013. South Dakota does not recognize their marriage. Greg and Mark state that, in addition to the social significance of a recognized marriage, they face significantly higher inheritance tax rates if one of them dies than an inheriting opposite-sex spouse would face.
Defendants in this matter are all officials for the state of South Dakota and have all been named as defendants in their official capacities due to their roles in enforcing South Dakota’s marriage laws. Dennis Daugaard is the governor of South Dakota and enforces and executes all laws of the state. Marty Jackley is the Attorney General and is the chief legal officer of the state. Doneen Hollingsworth is the Secretary of Health and oversees South Dakota’s vital records registration system. Trevor Jones is the Secretary of Public Safety and oversees South Dakota’s driver’s license service centers. Carol Sherman is the Brown County Register of Deeds, whose duties include issuing marriage licenses.
On May 22, 2014, plaintiffs filed a complaint alleging that South Dakota’s same-sex marriage ban deprives them of their constitutional rights to
5

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 6 of 28 PageID #: 759
equal protection, due process, and travel and seeking declarative and
injunctive relief. Docket 1. Defendants moved to dismiss the complaint. Docket
10. The court granted the motion to dismiss with respect to plaintiffs’ right to
travel claim, but denied the remainder of the motion.2 Docket 38. Pending are
cross motions for summary judgment on the remaining claims by plaintiffs and
defendants. Docket 20; Docket 43.3
LEGAL STANDARD
Summary judgment is appropriate if the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party can meet this
burden by presenting evidence that there is no dispute of material fact or that
the nonmoving party has not presented evidence to support an element of his
case on which he bears the ultimate burden of proof. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). “The nonmoving party may not ‘rest on mere
allegations or denials, but must demonstrate on the record the existence of
2 The court found that Baker v. Nelson, 409 U.S. 810 (1972), was no longer binding authority in light of doctrinal developments. The court also found that Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), was confined to whether Nebraska’s same-sex marriage ban violated a fundamental right to equal access to the political process and did not address the fundamental right to marriage. Docket 38. The court incorporates those findings and conclusions into this order.
3 Also pending is defendants’ motion for judicial notice of past South Dakota statutes on marriage and domestic relations and a table summarizing marriage laws around the United States. Docket 46. Plaintiffs do not object. Docket 48. Because the accuracy of those materials can be readily determined from sources whose accuracy cannot reasonably be questioned, the court takes judicial notice of the material submitted by defendants in conjunction with the motion at Docket 46. See Fed. R. Evid. 201.
6

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 7 of 28 PageID #: 760
specific facts which create a genuine issue for trial.’ ” Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)).
Summary judgment is precluded if there is a dispute in facts that could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For purposes of a summary judgment motion, the court views the facts and the inferences drawn from such facts “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
DISCUSSION I. Jurisdiction
Defendants contend that this court is without jurisdiction over this matter because it concerns domestic relations. Docket 41 at 11-15. “[T]he domestic relations exception . . . divests the federal courts of the power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992).
Defendants assert that the domestic relations exception is “[a]n exception to federal question jurisdiction[.]” Docket 41 at 12 (emphasis added). But the domestic relations exception only applies to this court’s diversity jurisdiction, not its federal question jurisdiction. See Marshall v. Marshall, 547 U.S. 293, 305-08 (2006); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 20-21 (2004) (Rehnquist, C.J., concurring) (clarifying that the “domestic relations exception . . . is a limiting construction of the statute defining federal diversity
7

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 8 of 28 PageID #: 761
jurisdiction”) abrogated in part on other grounds by Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014); United States v. Crawford, 115 F.3d 1397, 1401-02 (8th Cir. 1997) (limiting the domestic relations exception to diversity jurisdiction cases involving divorce, alimony, and child custody). Because this case arises under the United States Constitution and 42 U.S.C. § 1983, this court has federal question jurisdiction. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”).
Even if the domestic relations exception could be applied when the court has federal question jurisdiction, this case does not ask the court to issue a divorce, alimony, or child custody decree. See Marshall, 547 U.S. at 308 (quoting Ankenbrandt, 504 U.S. at 703-04) (stating that “only ‘divorce, alimony, and child custody decrees’ remain outside federal jurisdictional bounds”). The remedies requested by plaintiffs are not inextricably intertwined with any statecourt domestic proceeding.4 Contrary to defendants’ unsupported assertion, the fact that states may generally regulate marriage does not automatically include marriage in the domestic relations exception. Because this case presents constitutional claims, it is not a domestic relations case and that exception is inapplicable. See Marie v. Moser, 2014 WL 5598128, at *10 (D.
4 See Wallace v. Wallace, 736 F.3d 764, 767 (8th Cir. 2013); Kahn v. Kahn, 21 F.3d 859, 861 (8th Cir. 1994). Here, the court is not aware of any state-court proceeding on this issue with which this court could become entangled, and the remedy requested would not relitigate a divorce, alimony, or child custody decree.
8

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 9 of 28 PageID #: 762
Kan. Nov. 4, 2014); McGee v. Cole, 993 F. Supp. 2d 639, 645-46 (S.D.W. Va. 2014).
Defendants assert that “Plaintiffs’ challenge here directly interferes with state marriage laws” and that such interference is impermissible under the Tenth Amendment. Docket 41 at 14 (italics in original). States have the power to regulate marriage, but it is well settled that the state’s power is not absolute and is subject to constitutional limitations. United States v. Windsor, 133 S. Ct. 2675, 2691 (2013); Loving v. Virginia, 388, U.S. 1, 7 (1967). Therefore, the Tenth Amendment does not bar plaintiffs’ constitutional challenges.
Defendants attempt to combine the domestic relations exception and the Tenth Amendment to create an exception to jurisdiction in which only a “fundamental federal question” can provide sufficient grounds for a challenge to state marriage laws. See Docket 49 at 3. This argument lacks supporting authority and is based on a misapplication of both the domestic relations exception and the Tenth Amendment. This court has jurisdiction over constitutional challenges to state laws, which challenges are federal questions.5
5 Defendants suggest that these constitutional issues are not fundamental and are not subject to review in federal court. See Docket 49 at 5 (“[T]he Court does not have before it a fundamental federal question. As such, the constitutional issues raised by Plaintiffs are wholly state issues reserved to the State and its courts by the Tenth Amendment.”). To the extent defendants rely on Baker for the proposition that there is no substantial federal question here, this court has already rejected that argument. See Docket 38 at 10-18. As noted above, this court has jurisdiction over constitutional and federal statutory claims. 28 U.S.C. § 1331.
9

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 10 of 28 PageID #: 763
II. Due Process “[A]ll fundamental rights comprised within the term liberty are protected
by the Federal Constitution from invasion by the States.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846-47 (1992) (quotation omitted). The Due Process Clause “forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993) (emphasis in original) (internal quotations omitted). Plaintiffs argue that they have a fundamental right to marriage and to choose their spouses, and that South Dakota law deprives them of that fundamental right. Defendants argue that there is no fundamental right to same-sex marriage, and South Dakota’s marriage laws bear a rational relationship to a legitimate government purpose.
A. Fundamental Right A fundamental right is a right that is “objectively, deeply rooted in this Nation’s history and tradition . . . and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it] were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). In evaluating a substantive due process claim, a court must provide a “careful description of the asserted fundamental liberty interest” to minimize the subjectivity inherent in judicial review of due process. Id. at 721. Marriage is a fundamental right. Loving, 388 U.S. at 12 (quoting Skinner v. State of Okla. ex rel. Williamson, 316 U.S. 535, 541 (1942)) (“Marriage is one
10

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 11 of 28 PageID #: 764
of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”). “Although Loving arose in the context of racial discrimination, prior and subsequent decisions of [the Supreme] Court confirm that the right to marry is of fundamental importance for all individuals.” Zablocki v. Redhail, 434 U.S. 347, 384 (1978) (emphasis added).
Neither side disputes that the right to marriage is a fundamental right. Instead, defendants contend that the right to marriage is distinct from a right to same-sex marriage because marriage has traditionally been understood to be between a man and a woman. Docket 41 at 18-26. Plaintiffs argue that the right to marriage is not limited by the person attempting to exercise that right, and that the right to marriage necessarily encompasses the right to same-sex marriage. Docket 24 at 20-24.
1. Windsor Plaintiffs and defendants both claim that Windsor supports their respective positions and resolves this case. Both sides in this case point to the aspects of Windsor that supports their respective positions but fail to account for the limitations found in Windsor. This court believes that Windsor recognizes that the sexual and moral choices of homosexual citizens enjoy constitutional protection. See Windsor, 133 S. Ct. at 2694 (citing Lawrence v. Texas, 539 U.S. 558 (2003)). But Windsor does not resolve the question before this court because it limited its holding to marriages already permitted by state law and stopped short of requiring that states recognize same-sex marriage under the Constitution. Id. at 2696 (“This opinion and its holding are confined
11

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 12 of 28 PageID #: 765
to those lawful marriages.”) Because Windsor does not resolve the question presented in this case, the court turns to other Supreme Court precedent for guidance.
2. Supreme Court Precedent Other Supreme Court cases addressing the right to marriage have defined that right broadly. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”). The Supreme Court has struck down laws that limited the right to marriage and has done so without qualifying or further specifying that right. In Loving, the Supreme Court declared unconstitutional a law prohibiting interracial marriage, but in doing so the Court only discussed a fundamental right to marriage, not a fundamental right to interracial marriage. Loving, 388 U.S. at 12. Similarly, in Zablocki, the Supreme Court considered a Wisconsin statute that required any resident of that state who had children that were not currently in the resident’s custody to obtain a court order before marrying. Zablocki, 434 U.S. at 375. The statute further specified that courts should not grant permission to marry unless the resident was current on any child support obligation. The Supreme Court found that such a limitation burdened the fundamental right to marry. The Court did not limit the right based on the categorization of the individual attempting to exercise that right. In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court struck down a regulation
12

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 13 of 28 PageID #: 766
prohibiting inmates from marrying without the approval of the prison superintendent, again without reference to the characteristics upon which marriage was denied. These decisions make clear that the right to marriage is a fundamental right, and equally important for this case, they demonstrate that the right to marriage is not broken down into sub-rights depending on the individual attempting to exercise that right.
The right to marriage is related to other constitutionally protected rights, such as the right to privacy. See Zablocki, 434 U.S. at 384 (citing Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). Personal choices about marriage and other intimate decisions are “central to personal dignity and autonomy” protected by the Fourteenth Amendment. Planned Parenthood of Se. Pa., 505 U.S. at 851. The right to marriage also encompasses an associational right “ ‘of basic importance in our society’ [which is] sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971)). The right to make individual moral and sexual choices, particularly with respect to sexual orientation, also enjoys constitutional protection. See Windsor, 133 S. Ct. at 2694 (citing Lawrence, 539 U.S. 558). The fact that marriage is intertwined with other fundamental constitutional rights is consistent with the broad interpretation the Supreme Court has given to the right to marriage.
13

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 14 of 28 PageID #: 767
3. Lower Court Decisions
The majority of courts that have addressed the issue of the
constitutionality of same-sex marriage bans after Windsor have found that
same-sex marriage bans deprive homosexual couples of their fundamental
constitutional right to marriage.6 A few courts have reached the opposite
conclusion.7 With this legal framework in mind, the court turns to defendants’
arguments.
6 See Latta v. Otter, 771 F.3d 456, 477 (9th Cir. 2014) (Reinhardt, J., concurring) (“[T]he fundamental right to marriage . . . is properly understood as including the right to marry an individual of one’s choice. That right applies to same-sex marriage just as it does to opposite-sex marriage.”); Bostic v. Schaefer, 760 F.3d 352, 376-77 (4th Cir. 2014); Kitchen v. Herbert, 755 F. 3d 1193, 1209-18 (10th Cir. 2014); Campaign for S. Equal. v. Bryant, No. 3:14-CV818-CWR-LRA, 2014 WL 6680570, at *11 (S.D. Miss. Nov. 25, 2014) (“Relying on Supreme Court case law, the court concludes that there is no new fundamental right at issue. The question is not whether there is a right to same-sex marriage; it is whether gay and lesbian people, like any other group of people, have the freedom of choice to marry.”) (internal quotations omitted); Jernigan v. Crane, No. 4:13-cv-00410 KGB, 2014 WL 6685391, at *16-17 (E.D. Ark. Nov. 25, 2014); Lawson v. Kelly, No. 14-0622-CV-W-ODS, 2014 WL 5810215, at *6-8 (W.D. Mo. Nov. 7, 2014); Brenner v. Scott, 999 F. Supp. 2d 1278, 1288-89 (N.D. Fla. 2014); Baskin v. Bogan, 12 F. Supp. 3d 1144, 115657 (S.D. Ind. 2014), aff’d, 766 F.3d 648 (7th Cir. 2014); Wolf v. Walker, 986 F. Supp. 2d 982, 1001 (W.D. Wis. 2014) (“If the scope of the right to marry is broad enough to include even those whose past conduct suggests an inclination toward violating the law and abdicating responsibility, then it is difficult to see why it should not be broad enough to encompass same-sex couples as well.”), aff’d sub nom. Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Whitewood v. Wolf, 992 F. Supp. 2d 410, 423-24 (M.D. Pa. 2014) (“[T]his Court is not only moved by the logic that the fundamental right to marry is a personal right to be exercised by the individual, but also rejects Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry. The right Plaintiffs seek to exercise is not a new right, but is rather a right that these individuals have always been guaranteed by the United States Constitution.”); Latta v. Otter, 19 F. Supp. 3d 1054, 1068-72 (D. Idaho 2014), aff’d, 771 F.3d 456 (9th Cir. 2014); De Leon v. Perry, 975 F. Supp. 2d 632, 658-59 (W.D. Tex. 2014);
14

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 15 of 28 PageID #: 768
4. Defendants’ Arguments
a. Narrow Definition Required
Defendants contend that the requirement found in Glucksberg, that
substantive due process rights must be carefully described, compels the
conclusion that the right at stake in this case is the right to same-sex
marriage. Docket 41 at 18; see also Robicheaux v. Caldwell, 2 F. Supp. 3d 910,
922 & n.13 (E.D. La. 2014). This court disagrees and instead agrees with the
concurring opinion of Judge Reinhardt that in the substantive due process
context, “ ‘careful’ does not mean ‘cramped.’ ” See Latta, 771 F.3d at 477
(Reinhardt, J., concurring). “A careful description means only an accurate one,
determined at the appropriate level of generality. . . . And Loving, Zablocki, and
Turner applied the right to marry at that level of generality . . . .” Brenner, 999
F. Supp. 2d at 1288. In Lawrence, the Supreme Court overruled Bowers v.
Hardwick, 478 U.S. 186 (1986), because, in part, Bowers “misapprehended the
Bostic v. Rainey, 970 F. Supp. 2d 456, 472-73 (E.D. Va. 2014) (“These laws limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse. These laws interject profound government interference into one of the most personal choices a person makes.”), aff’d sub nom. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1202-03 (D. Utah 2013), aff’d, 755 F. 3d 1193 (10th Cir. 2014).
7 DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014); Robicheaux v. Caldwell, 2 F. Supp. 3d 910, 922 & n.13 (E.D. La. 2014); Love v. Beshear, 989 F. Supp. 2d 536, 544 (W.D. Ky. 2014) (explaining a concern for the court to hold “that the fundamental right to marry encompasses same-sex marriage would be a dramatic step that the Supreme Court has not yet indicated a willingness to take” but concluding that finding “is unnecessary to the ultimate result in this action” because the court found the same-sex marriage ban unconstitutional on other grounds).
15

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 16 of 28 PageID #: 769
claim of liberty there presented to it” by defining the issue too narrowly. Lawrence, 539 U.S. at 567. Defendants’ interpretation of the right at stake as a right to same-sex marriage makes the same error by defining the right to marriage too narrowly and in a manner inconsistent with Loving, Zablocki, and Turner. See Wolf, 986 F. Supp. 2d at 1001 (“Accordingly, I conclude defendants are making the same mistake as the Court in Bowers when they frame the question in this case as whether there is a ‘right to same-sex marriage’ instead of whether there is a right to marriage from which same-sex couples can be excluded.”).
b. Public Policy Debate Defendants also argue that a decision permitting same-sex marriage issuing from this court is improper because it removes the question from public debate. See Docket 41 at 17 (citing Glucksberg, 521 U.S. at 720). But plaintiffs need not resort to public opinion to secure their fundamental constitutional rights, as the Supreme Court has explained: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis added). The protection of those rights is a duty of the courts, not of the electorate. But see DeBoer, 772 F.3d at 395-96 (arguing that the democratic
16

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 17 of 28 PageID #: 770
process is the proper mechanism to extend the right to marriage to same-sex couples).
c. Tradition Defendants contend that Loving, Zablocki, and Turner simply accepted the traditional definition of opposite-sex marriage, to which South Dakota has always adhered,8 and those cases “provide no legal support for the conclusion that same-sex marriage is part of the fundamental right to marriage.” Docket 41 at 24. This is not persuasive. “History and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” Lawrence, 539 U.S. at 572 (alteration and quotations omitted). In Lawrence, the Supreme Court overruled Bowers, even though there was no history of a protected right to homosexual intimate conduct. Loving overturned Virginia’s anti-miscegenation statute even though such laws were part of the traditional definition of marriage in some states. Baskin, 766 F.3d at 666 (“The state’s argument from tradition runs head on into [Loving] since the limitation of marriage to persons of the same race was traditional in a number of states when the Supreme Court invalidated it.”). Thus, the fact that marriage was traditionally viewed in a certain way does not insulate that right from constitutional challenges.9 See Kitchen, 755 F.3d at 1217-18.
8 See Docket 46 and attachments. 9 If traditional definitions of marriage were unassailable, marriage would look much different than it does today. “[W]ithin the past century, married women had no right to own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands.”
17

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 18 of 28 PageID #: 771
Furthermore, Supreme Court cases have repeatedly refused to describe a
right by incorporating the classification of a group trying to exercise that right.
See Latta, 771 F.3d at 477-78 (Reinhardt, J., concurring) (“In each case, the
Supreme Court referred to—and considered the historical roots of—the general
right of people to marry, rather than a narrower right defined in terms of those
who sought the ability to exercise it.”). As the Fourth Circuit observed:
[Loving, Zablocki, and Turner] do not define the rights in question as ‘the right to interracial marriage,’ ‘the right of people owing child support to marry,’ and ‘the right of prison inmates to marry.’ Instead, they speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.
Bostic, 760 F.3d at 376.
Even though Loving and Zablocki did not specifically discuss whether the
right to marriage includes same-sex marriage,10 the broad and unqualified
discussion of the right to marriage undermines defendants’ assertion that the
right at issue is a narrower right to same-sex marriage. Moreover, Loving,
Zablocki, and Turner provide no legal support for describing the right at issue
as anything other than the fundamental right to marriage. Therefore,
Latta, 771 F.3d at 475. See also id. at 487-88 (Berzon, J., concurring) (discussing traditional aspects of marriage such as coverture and a husband’s right to chastise his wife, “that is, to beat her short of permanent injury”).
10 Defendants argue that the Supreme Court’s summary dismissal in Baker, which came after Loving, indicates that Loving did not extend to samesex marriage. Docket 41 at 23. This court already discussed in its denial of defendants’ motion to dismiss the reasons why Baker is no longer authoritative. Docket 38 at 10-18. Furthermore, Loving and Zablocki did not address same-sex marriage because those cases did not present that issue.
18

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 19 of 28 PageID #: 772
defendants’ argument that the court should limit the fundamental right to
marriage based on the traditional understanding of that right is contrary to
Supreme Court precedent.
d. Slippery Slope
Defendants also argue that defining the right in this case as a
fundamental right to marriage calls into question the ability of the state to
regulate marriage based on polygamy and incest. See, e.g., Docket 41 at 19.
Regulations on polygamy or incest are not at issue in this case. Additionally,
this argument is logically flawed and distracts from the distinct issue presented
by same-sex marriage bans. In Zablocki, the Supreme Court distinguished a
complete prohibition on marriage from reasonable state regulations on
marriage:
By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with the decisions to enter into the marital relationship may legitimately be imposed.
Zablocki, 434 U.S. at 386.11 For example, anti-nepotism policies indirectly
relate to marriage but do not directly and substantially interfere with the
11 In a concurrence arguing that due process, not equal protection, was the proper framework of analysis, Justice Stewart wrote that “[s]urely, for example, a State may legitimately say that no one can marry his or her sibling, that no one can marry who is not at least 14 years old, that no one can marry without first passing an examination for venereal disease, or that no one can marry who has a living husband or wife. But, just as surely, in regulating the intimate human relationship of marriage, there is a limit beyond which a State may not constitutionally go.” Zablocki, 434 U.S. at 684 (Stewart, J., concurring). The viability of state-imposed limitations on marriage based on polygamy, incest, and age of consent seems to be questioned only by those
19

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 20 of 28 PageID #: 773
exercise of that right. Lawson, 2014 WL 5810215, at *7 (citing Parsons v. Del
Norte Country, 728 F.2d 1234 (9th Cir. 1984)).
In the years following Loving, Zablocki, and Turner, states have
maintained laws on polygamy, incest, age of consent, and other marriage-
related issues despite the Supreme Court’s classification of marriage as a
fundamental right. Importantly, the Supreme Court has never held that there
is a protected privacy or liberty interest in polygamy or incest, but the Supreme
Court has extended constitutional protection to same-sex intimate conduct and
relationships.12 This court is not persuaded that adhering to long-standing
Supreme Court precedent and defining the right at issue here as a
fundamental right to marriage will curtail South Dakota’s ability to otherwise
regulate marriage in ways that do not interfere with constitutionally protected
interests.
attempting to find a reason why same-sex marriage could undermine the institution of marriage as a whole.
12 See Kitchen, 755 F.3d at 1229 (“Appellants also suggest that today’s ruling will place courts on a slippery slope towards recognizing other forms of currently prohibited marriages. Although we have no occasion to weigh in on the validity of laws not challenged in this case, same-sex marriage prohibitions differ in at least one key respect from the types of marriages the appellants identify: Unlike polygamous or incestuous marriages, the Supreme Court has explicitly extended constitutional protection to intimate same-sex relationships, see Lawrence, 539 U.S. at 567, and to the public manifestations of those relationships, Windsor, 133 S. Ct. at 2695. Our holding that plaintiffs seek to exercise a fundamental right turns in large measure on this jurisprudential foundation that does not exist as to the hypothetical challenges identified by appellants.”). Furthermore, laws banning polygamy and incest only prevent people from marrying in certain limited instances, whereas South Dakota’s ban on same-sex marriage prevents homosexual South Dakotans from marrying at all. See Lawson, 2014 WL 5810215, at *7; Latta, 19 F. Supp. 3d at 1072.
20

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 21 of 28 PageID #: 774
Pertinent decisions from the Supreme Court are clear and consistent that the right to marriage is a fundamental right. The Supreme Court has also refused to describe the right to marriage by reference to the individuals wishing to exercise that right. In keeping with the decisions of most of the federal courts that have addressed this issue, this court agrees with plaintiffs that the question in this case is whether same-sex couples, like opposite-sex couples, may marry. Thus, the right at stake is not a new right to same-sex marriage, as defendants contend. Instead, the substantive due process right is the right to marry, which right is fundamental. South Dakota’s marriage laws significantly interfere with this fundamental right by preventing same-sex couples from marrying and refusing to recognize out-of-state same-sex marriages. Because strict scrutiny applies to analyze deprivations of fundamental rights claims, the court will apply strict scrutiny here. Reno, 507 U.S. at 301-02.
B. Strict Scrutiny Under strict scrutiny, a law will survive review only if it is narrowly tailored to serve a compelling state interest. Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Glucksberg, 521 U.S. at 721. Defendants bear the burden of demonstrating that South Dakota’s laws banning same-sex marriage meet this exacting standard. See Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013). Additionally, the state’s “justification must be genuine, not hypothesized or invented post hoc in response to litigation.” United States v. Virginia, 518 U.S. 515, 533 (1996).
21

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 22 of 28 PageID #: 775
Defendants assert the following justifications for South Dakota’s samesex marriage ban: (1) channeling procreation into marriage; and (2) proceeding with caution. Docket 41 at 36-47. Defendants do not provide any evidence that either of those interests was an actual motivation behind South Dakota’s samesex marriage ban. Furthermore, defendants only argue that those asserted interests are rationally related to South Dakota’s same-sex marriage laws and do not argue they are sufficient under any heightened standard of review. Nonetheless, the court will address each asserted interest.
Defendants argue that South Dakota has an interest in “encourag[ing] heterosexual couples—the couples most likely to have children—to accept the obligations and liabilities associated with a state marriage laws [sic] so that children, and particularly unplanned children, are not abandoned and required to be supported by the public fisc.” Docket 41 at 39. Defendants make no showing that keeping children from being supported by the state is a compelling state interest. Even if the court assumes that interest is compelling, defendants essentially concede that South Dakota’s laws are not narrowly tailored to that interest by arguing that “the State does not have to draw perfect lines” and that the general classification is sufficient. Docket 41 at 43. South Dakota’s same-sex marriage ban is not narrowly tailored to serve the state interest of channeling accidental reproduction into two-parent households because it does not explain why infertile or otherwise non-procreative heterosexual couples are allowed to marry and fails to provide a reason why children adopted or conceived—even if they are not conceived accidentally—by
22

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 23 of 28 PageID #: 776
same-sex couples would not be better off if raised by a married same-sex couple. See, e.g., Baskin, 766 F.3d at 660-65 (rejecting this justification under the far less demanding rational-basis standard); Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1290-93 (D. Okla. 2014) (holding that “the state’s exclusion of only same-sex couples in this case is so grossly underinclusive that it is irrational and arbitrary”).
Defendants also argue that “[t]he State Legislature and electorate could also rationally believe same-sex marriage would fundamentally alter a basic societal structure, would have an impact on the public fisc by extending state marriage benefits to a new group of couples, and that changes should proceed with caution.” Docket 41 at 44. But defendants fail to provide any argument showing why proceeding with caution is a compelling state interest. If accepted as a compelling state interest, this justification would support every existing law.13 Even if it were compelling, defendants have not shown what additional information South Dakota needs to gather, why preserving the status quo is the only means of avoiding unidentified future harm, and how long South Dakota same-sex couples should wait to enjoy their fundamental constitutional right to marriage.14 Given that lack of detail, South Dakota’s marriage laws are not narrowly tailored to this asserted state interest.15
13 This “go slow” justification did not prevent the Supreme Court from invalidating state laws banning interracial marriage in Loving or state laws banning homosexual sex acts in Lawrence. See Baskin, 766 F.3d at 669-70.
14 South Dakota amended its Constitution to prohibit same-sex marriage. Therefore, it appears unlikely that the legislature or electorate is simply waiting to measure the impact of same-sex marriage in other states before deciding
23

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 24 of 28 PageID #: 777
Neither justification provided by the state meets the demanding standard of strict scrutiny. Because defendants have not shown that South Dakota’s laws banning same-sex marriage are narrowly tailored to serve a compelling state interest, those laws impermissibly deny plaintiffs their fundamental right to marry in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
III. Equal Protection The Fourteenth Amendment requires that states afford all citizens the equal protection of the laws. U.S. Const. amend. XIV. “As a threshold matter, in order ‘[t]o state an equal protection claim, [a plaintiff] must have established that he was treated differently from others similarly situated to him.’ ” Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir. 2004) (quoting Johnson v. City of Minneapolis, 152 F.3d 859, 862 (8th Cir. 1998)). If a statute treats citizens differently based on a suspect classification or involves a fundamental right, the challenged law receives heightened scrutiny. All other classifications will be upheld “if there is a rational relationship between the disparity of treatment
whether to allow it in South Dakota. Instead, the act of incorporating the samesex marriage ban into the state Constitution sends the message that South Dakota’s same-sex marriage ban is not a temporary state of affairs but rather a fundamental statement of the state’s public policy.
15 Defendants make the related argument that this fundamental policy decision should be made through the democratic process. Docket 41 at 46-47. That is not a justification for the existence of the law. As noted above, vindication of constitutional rights is not an issue for state legislatures or the ballot box. Barnette, 319 U.S. at 638.
24

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 25 of 28 PageID #: 778
and some legitimate governmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 320 (1993).
If a classification “impinge[s] upon the exercise of a fundamental right,” the Equal Protection Clause requires “the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.” Plyler v. Doe, 457 U.S. 202, 216-17 (1982) (quotation omitted). For reasons stated with respect to plaintiffs’ due process claim, South Dakota’s same-sex marriage ban deprives same-sex citizens of a fundamental right, and that classification is not narrowly tailored to serve a compelling state interest. Thus, South Dakota’s same-sex marriage ban violates the Equal Protection Clause.16 IV. Stay Pending Appeal
Defendants request a stay pending appeal. Docket 49 at 13-14. Plaintiffs oppose such a stay. Docket 47 at 23. Neither party cites the authority under which a stay pending appeal may be granted or denied. Federal Rule of Civil Procedure 62 sets out the rule for when a decision may be stayed.
A four-part test governs stays pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the
16 The court has determined that strict scrutiny is appropriate because South Dakota’s same-sex marriage ban impinges upon a fundamental right. Thus, the court need not address plaintiffs’ arguments that South Dakota’s same-sex marriage ban should receive heightened scrutiny based on gender, sexual orientation, or animus.
25

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 26 of 28 PageID #: 779
proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987). “[A] stay will be granted if the balance of equities favors this action.” 11 Charles Alan Wright et al., Federal Practice and Procedure § 2904 (3d ed.) (hereinafter Wright and Miller). The moving party bears the burden of establishing these factors. Nken v. Holder, 556 U.S. 418, 434 (2009). “[T]his standard is a heavy one, more commonly stay requests will not meet this standard and will be denied.” 11 Wright and Miller § 2904.
Defendants do not argue that they are likely to succeed on the merits. Nonetheless, cases raising substantial difficult or novel legal issues may merit a stay. Id. Because the Eighth Circuit has not ruled on this issue, this case presents novel and substantial legal questions, which weighs in favor of a stay. Defendants have not made a showing that they would be irreparably injured absent a stay so the second factor does not weigh in favor of a stay. The ongoing denial of a constitutional right constitutes irreparable harm to plaintiffs, which weighs against issuing a stay. But plaintiffs would also be harmed if this court did not issue a stay and the Eighth Circuit reversed this decision. There is a public interest in requiring state officials to comply with the Constitution. In this case, however, an additional public interest is present. There is a substantial public interest in having stable marriage laws and avoiding uncertainty produced by a decision that is issued and subsequently stayed by an appellate court or overturned. “Encouraging a rush to the marriage officiant, in an effort to get in before an appellate court enters a stay, serves the interests of nobody.” Brenner, 999 F. Supp. 2d at 1292. Both district
26

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 27 of 28 PageID #: 780
courts in the Eighth Circuit to rule on same-sex marriage bans have stayed their decisions. Because this case presents substantial and novel legal questions, and because there is a substantial public interest in uniformity and stability of the law, this court stays its judgment pending appeal.
CONCLUSION In Loving, the Supreme Court addressed a traditionally accepted definition of marriage that prohibited Mildred Jeter and Richard Loving from marrying. Because Virginia’s laws deprived that couple of their fundamental right to marriage, the Court struck down those laws. Little distinguishes this case from Loving. Plaintiffs have a fundamental right to marry. South Dakota law deprives them of that right solely because they are same-sex couples and without sufficient justification. Accordingly, it is ORDERED that plaintiffs’ motion for summary judgment (Docket 20) is granted, and defendants’ motion for summary judgment (Docket 43) is denied. IT IS FURTHER ORDERED that 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. IT IS 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.
27

Case 4:14-cv-04081-KES Document 50 Filed 01/12/15 Page 28 of 28 PageID #: 781 IT IS FURTHER ORDERED that a separate judgment will be entered and
the effects of that judgment will be stayed until the judgment is final. Dated January 12, 2015. BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
28

 
 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

JENNIE ROSENBRAHN, NANCY ROSENBRAHN, JEREMY COLLER, CLAY SCHWEITZER, LYNN SERLING-SWANK, MONICA SERLING-SWANK, KRYSTAL COSBY, KAITLYNN HOERNER, BARBARA WRIGHT, ASHLEY WRIGHT, GREG KNIFFEN, and MARK CHURCH,
Plaintiffs,
vs.
DENNIS DAUGAARD, in his official capacity as Governor; MARTY JACKLEY, in his official capacity as Attorney General; KIMBERLEY MALSAM-RYSDON, in her official capacity as Secretary of Health; TREVOR JONES, in his official capacity as Secretary of Public Safety; and CAROL SHERMAN, in her official capacity as Brown County Register of Deeds;
Defendants.

4:14-CV-04081-KES
ORDER DENYING MOTION TO VACATE

This court entered its judgment for plaintiffs on January 12, 2015. Docket 51. On February 10, 2015, Plaintiffs filed an emergency motion to

vacate the stay this court imposed on its judgment. Docket 65. Defendants1
oppose the motion to vacate. The motion is denied.
“A federal district court and a federal court of appeals should not attempt
to assert jurisdiction over a case simultaneously. The filing of a notice of appeal
is an event of jurisdictional significance—it confers jurisdiction on the court of
appeals and divests the district court of its control over those aspects of the
case involved in the appeal.” United States v. Ledbetter, 882 F.2d 1345, 1347
(8th Cir. 1989) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56,
58 (1982) (per curiam)). This court’s judgment issued on January 12, 2015.
Defendants filed a notice of appeal on January 26, 2015. Because a notice of
appeal has been filed, this court no longer has jurisdiction to modify its
judgment.2 As plaintiffs concede, they can request that the Eighth Circuit
Court of Appeals vacate the stay. Docket 65 at 2.
If this court did have jurisdiction, it would apply the same standard
applied by a court of appeals. See 11 Charles Alan Wright et al., Fed. Practice &
1 Doneen Hollingsworth was replaced as the South Dakota Secretary of Health on January 26, 2015, by Kimberley Malsam-Rysdon. Under Federal Rule of Civil Procedure 25(d), Malsam-Rysdon is automatically substituted for Hollingsworth as a party in this action.
2 A district court may, in limited circumstances, exercise jurisdiction over a case while appeal is pending. But those circumstances are generally limited to preserving the status quo while the appeal is pending. See 11 Charles Alan Wright et al., Fed. Practice & Procedure Civil § 2904 (3d ed.). Plaintiffs’ reply on the motion to vacate was due on February 27, 2015, but plaintiffs did not file a reply. By not replying, plaintiffs failed to point the court to any authority indicating that this court may have jurisdiction in this instance. The court is not aware of any authority that would alter the general rule that a district court should not assert jurisdiction over a case once an appeal has been filed.
2

Procedure Civil § 2904 (3d ed.). In Lawson v. Missouri, No. 15-1022, a same-sex marriage case consolidated with this case on appeal, the plaintiffs appealed the district court’s decision to stay its judgment pending appeal and the Eighth Circuit refused to lift the stay. Docket 67-1. The facts in Lawson are not meaningfully distinct from the facts here. In imposing the stay, the Lawson court considered the same arguments made here by plaintiffs. The Supreme Court’s refusal to impose a stay on other federal district court decisions is not precedential. Thus, the court sees no reason why its previous conclusion to grant the stay should be vacated. Accordingly, it is
ORDERED that plaintiffs’ motion to vacate the stay pending appeal (Docket 65) is denied.
IT IS FURTHER ORDERED that plaintiffs’ motion to expedite defendants’ response deadline (Docket 66) is denied as moot.
Dated March 3, 2015. BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
3

 
 Rosenbrahn v. Daugaard, 799 F.3d 918 (2015)

799 F.3d 918 United States Court of Appeals,
Eighth Circuit.
Jennie ROSENBRAHN; Nancy Rosenbrahn; Jeremy Coller; Clay Schweitzer; Lynn Serling– Swank; Monica Serling–Swank; Krystal Cosby; Kaitlynn Hoerner; Barbara Wright; Ashley Wright; Greg Kniffen; Mark Church, Plaintiffs–Appellees
v. Dennis DAUGAARD, in his official capacity as Governor; Marty Jackley, in his official capacity as Attorney General; Kimberley Malsam–Rysdon, in her official capacity as Secretary of Health; Trevor Jones, in his official capacity as Secretary of Public Safety; Carol Sherman, in her official capacity as Brown County Register of Deeds, Defendants–
Appellants Liberty, Life, and Law Foundation; North Carolina
Values Coalition; Foundation for Moral Law; Eagle Forum Education & Legal Defense Fund; David Boyle; Robert Oscar Lopez, Amici on Behalf
of Appellant(s) Howard University School of Law Civil Rights
Clinic; COLAGE; Family Equality Council; Americans United For Separation of Church and
State; American Association for Marriage and Family Therapy; American Psychiatric Association; American Psychoanalytic
Association; American Psychological Association; Arkansas Psychological Association; National Association of Social Workers; National
Association of Social Workers Missouri, Arkansas, South Dakota, and Nebraska Chapters; Leadership
Conference Education Fund; Leadership Conference on Civil and Human Rights; American
Sociological Association; Affirmation; Covenant Network of Presbyterians; Friends for Lesbian, Gay, Bisexual, Transgender, and Queer Concerns; General Synod of the United Church of Christ; Methodist Federation for Social Action; More Light Presbyterians; Muslims for Progressive Values; Parity; President of the House of Deputies of the Episcopal Church and the Episcopal Bishops of Missouri and Nebraska; Reconciling Ministries Network; Reconciling Works: Lutherans for Full
Participation; Reconstructionist Rabbinical Association; Reconstructionist Rabbinical College
and Jewish Reconstructionist Communities; Religious Institute, Inc.; Union for Reform Judaism; Unitarian Universalist Association; Historians of Marriage; 24 Employers; Historians of Antigay Discrimination; Constitutional Law
1

Scholars; Gary J. Gates, Amici on Behalf of Appellee(s).
No. 15–1186. |
Submitted: July 15, 2015. |
Filed: Aug. 11, 2015.
Synopsis Background: Same-sex couples brought action against various South Dakota officials, alleging that prohibition of same-sex marriage and refusal to recognize valid outof-state same-sex marriages violated equal protection and due process. The United States District Court for the District of South Dakota, Karen E. Schreier, J., 61 F.Supp.3d 862, granted summary judgment to couples and issued a permanent injunction but stayed it pending appeal. State officials appealed.
The Court of Appeals held that Supreme Court’s Obergefell decision did not render the action moot.
Affirmed.
West Codenotes
Recognized as Unconstitutional S.D.Const. Art. 21, § 9; SDCL §§ 25–1–1, 25–1–38
Attorneys and Law Firms
*920 Shannon Price Minter, Christopher F. Stoll, San Francisco, CA, Joshua A. Newville, Madia Law, Minneapolis, MN, Kylie Marie Riggins, Viken & Riggins, Rapid City, SD, Debra M. Voigt, Burd & Voigt, Sioux Falls, SD, for Plaintiffs–Appellees.
Ellie Bailey, Jeffrey Paul Hallem, Attorney General’s Office, Robert B. Anderson, Justin L. Bell, May & Adam, Pierre, SD, for Defendant–Appellant.
Deborah J. Dewart, Swansboro, NC, amicus curiae, North Carolina Values Coalition and Liberty, Life, and Law Foundation. John Eidsmoe, Montgomery, AL, amicus curiae, Foundation for Moral Law. Lawrence J. Joseph, Washington, DC, amicus curiae, Eagle Forum Education & Legal Defense Fund. David Boyle, Long Beach, CA, amicus curiae Robert Oscar Lopez. Prof. Aderson B.

Rosenbrahn v. Daugaard, 799 F.3d 918 (2015)
Francois, Washington, DC, Benjamin G. Shatz, Brad W. Seiling, Los Angeles, CA, amicus curiae Howard University School of Law Civil Rights Clinic. Thomas E. Nanney, Kansas City, MO, Brian C. Walsh, St. Louis, MO, amicus curiae Family Equality Counsel and Colage. Ayesha N. Khan, Alex J., Richard B. Katskee, Scott M. Noveck, Hannah Y.S. Chanoine, Washington, DC, amicus curiae Americans United for Separation of Church and State. Nathalie F.P. Gilfoyle, Paul M. Smith, Aaron M. Panner, Washington, DC, amici curiae American Association for Marriage and Family Therapy, American Psychiatric Association, American Psychoanalytic Association, American Psychological Association, Arkansas Psychological Association, National Association of Social Workers and National Association of Social Workers Missouri, Arkansas, South Dakota, and Nebraska Chapters. Wade J. Henderson, Lisa M. Bornstein, Matthew M. Hoffman, Andrew Hudson, Washington, DC, amicus curiae The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund. Carmine D. Boccuzzi, Jr., Mark A. Lightner, Grant A. Bermann, Alexandra Eber, New York, N.Y., amicus curiae The American Sociological Association. Pratik A. Shah, Washington, DC, Jessica M. Weisel, Los Angeles, CA, Daniel McNeel Lane, Jr., San Antonio, TX, amicus curiae Historians of Marriage. Adam P. Romero, Benjamin G. Shatz, Brad W. Seiling, Los Angeles, CA amicus curiae Gary J. Gates. Catherine E. Stetson, Erica Knievel Songer, Mary Helen Wimberly, Madeline H. Gitomer, Katherine J. Duncan, Washington, DC, amicus curiae Historians of Antigay Discrimination. Susan Baker Manning, Michael L. Whitlock, Jawad Muaddi, Kimberley E. Lunetta, Jacquelynne M. Hamilton, Washington, DC, amicus curiae 24 Employers. Geoffrey R. Stone, Chicago, IL, Diane M. Soubly, Ann Arbor, MI, Lori Alvino McGill, Washington, DC, amicus curiae Constitutional Law Scholars. Jeffrey S. Trachtman, Norman C. Simon, Jason M. Moff, Kurt M. Denk, Michelle Ben–David, Catherine Hoge, New York, N.Y., amici curiae Affirmation, Covenant Network of Presbyterians, Friends for Lesbian, Gay, Bisexual, Transgender, and Queer Concerns, General Synod of the United Church of Christ, Methodist Federation for Social Action, More Light Presbyterians, Muslims for Progressive Values, Parity, President of the House of Deputies of the Episcopal Church and the Episcopal Bishops of Missouri and Nebraska, Reconciling Ministries Network, Reconciling Works: Lutherans for Full Participation, Reconstructionist Rabbinical Association, Reconstructionist Rabbinical College and Jewish Reconstructionist Communities, Religious Institute, Union for Reform Judaism *921 and Unitarian Universalist Association.
2

Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
Opinion
PER CURIAM.
Plaintiffs are six same-sex couples seeking to marry in South Dakota or to have their marriage in another state recognized in South Dakota. They also seek state benefits incident to marriage. The district court1 granted Plaintiffs’ motion for summary judgment, finding laws denying them the right to marry (in Article 21, § 9 of the South Dakota Constitution and South Dakota Codified Laws §§ 25–1–1, 25–1–38) violate the U.S. Constitution’s guarantees of due process and equal protection. In addition to a declaratory judgment, the court issued a permanent injunction, but stayed it pending appeal. South Dakota appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
While the appeal was pending, the Supreme Court decided Obergefell v. Hodges, ––– U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), abrogating Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir.2006). Plaintiffs filed a suggestion to summarily affirm and a motion to vacate the district court’s stay. South Dakota filed a suggestion of mootness and a motion to vacate the district court’s judgment.
South Dakota no longer disputes the merits of the district court’s ruling. The challenged laws are unconstitutional. As Obergefell concluded:
[T]he right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the samesex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson[,409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972),] must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to

Rosenbrahn v. Daugaard, 799 F.3d 918 (2015)

the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
Obergefell, 135 S.Ct. at 2604–05. The Supreme Court also noted,
[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing samesex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

State laws challenged by Petitioners in these cases are now held invalid.” Id. at 2605 (emphasis added). Cf. United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 477–78, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (limiting relief to the parties before the Court and noting “we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants”). The Court invalidated laws in Michigan, Kentucky, Ohio, and Tennessee—not South Dakota. See Campaign for S. Equal. v. Bryant, 791 F.3d 625, 627 (5th Cir.2015) (ordering district court to enter final judgment that Texas laws denying same-sex couples the right to marry are unconstitutional); Conde–Vidal v. Rius–Armendariz, No. 14–2184 (1st Cir. July 8, 2015) (judgment vacating and remanding district court judgment that dismissed challenge to law denying same-sex marriage). And the Court did not determine all issues raised by Plaintiffs here (for example, name-changes on driver’s licenses). South Dakota has not repealed the challenged laws.
South Dakota’s assurances of compliance with Obergefell do not moot the case. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”). These assurances may, however, impact the necessity of continued injunctive relief. The district court is better positioned to consider the issue on appropriate motion. See United States v. Bailey, 571 F.3d 791, 804 (8th Cir.2009) (noting this court reviews permanent injunctions for abuse of discretion, reversing when the injunction is based on “a legal error or a clearly erroneous finding of fact”). This court leaves to the court’s discretion whether to vacate the stay of the injunction.
The judgment is affirmed. All pending motions are denied.

Id. at 2607.
South Dakota suggests that Obergefell moots this case. But the Supreme *922 Court specifically stated that “the

All Citations 799 F.3d 918

Footnotes

1

The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota.

3

Rosenbrahn v. Daugaard, 799 F.3d 918 (2015) End of Document
4

 
 Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 1 of 14
U.S. District Court District of South Dakota (Southern Division) CIVIL DOCKET FOR CASE #: 4:14−cv−04081−KES

CLOSED

Rosenbrahn et al v. Daugaard et al Assigned to: U.S. District Judge Karen E. Schreier Case in other court: 8th Circuit, 15−01186 Cause: 42:1983 Civil Rights Act − Civil Action for Deprivation of Rights
Plaintiff

Date Filed: 05/22/2014 Date Terminated: 01/12/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Jennie Rosenbrahn

represented by Debra M. Voigt Burd & Voigt Law Office 601 South Cliff Avenue, Suite A Sioux Falls, SD 57104 (605) 332−4351 Fax: (605) 334−6844 Email: debra@burdandvoigt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Newville Madia Law LLC 345 Union Plaza 333 Washington Avenue North Minneapolis, MN 55401 (612) 349−2743 Fax: (612) 235−3357 Email: joshuanewville@madialaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 (415) 392−6257 Fax: (415) 392−8442 Email: CStoll@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED

Kylie M. Riggins Viken Law Firm 4200 Beach Dr. Suite 4 Rapid City, SD 57702 (605) 721−7230 Fax: (605) 721−7233 Email: kmriggins@vikenlaw.com ATTORNEY TO BE NOTICED

Shannon P. Minter National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 (415) 392−6257 Fax: (415) 392−8442 Email: SMinter@nclrights.org PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 2 of 14

Plaintiff Nancy Rosenbrahn
Plaintiff Jeremy Coller
Plaintiff Clay Schweitzer

represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua A. Newville (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kylie M. Riggins (See above for address) ATTORNEY TO BE NOTICED
Shannon P. Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua A. Newville (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kylie M. Riggins (See above for address) ATTORNEY TO BE NOTICED
Shannon P. Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua A. Newville (See above for address) LEAD ATTORNEY PRO HAC VICE

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 3 of 14

ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kylie M. Riggins (See above for address) ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Lynn Serling−Swank

represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Newville (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kylie M. Riggins (See above for address) ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Monica Serling−Swank

represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Newville (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kylie M. Riggins (See above for address) ATTORNEY TO BE NOTICED

Shannon P. Minter

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 4 of 14

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Krystal Cosby

represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Newville (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kylie M. Riggins (See above for address) ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Kaitlynn Hoerner

represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Newville (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kylie M. Riggins (See above for address) ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Barbara Wright

represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Newville

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 5 of 14

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kylie M. Riggins (See above for address) ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Ashley Wright

represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Newville (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kylie M. Riggins (See above for address) ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Greg Kniffen

represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Newville (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kylie M. Riggins (See above for address)

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 6 of 14

ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Mark Church

represented by Debra M. Voigt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua A. Newville (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher F. Stoll (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kylie M. Riggins (See above for address) ATTORNEY TO BE NOTICED

Shannon P. Minter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Dennis Daugaard in his official capacity as Governor

represented by Ellie J. Bailey Attorney General of South Dakota 1302 E. Highway 14 Suite 1 Pierre, SD 57501−8501 (605) 773−4816 Email: Ellie.Bailey@state.sd.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey P. Hallem Attorney General's Office 500 E. Capitol Pierre, SD 57501−5070 773−3215 Fax: 773−4106 Email: jeff.hallem@state.sd.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roxanne Giedd Attorney General of South Dakota 1302 E. Highway 14 Suite 1 Pierre, SD 57501−8501 773−3215 Fax: 773−4106

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 7 of 14

Email: roxanne.giedd@state.sd.us TERMINATED: 08/11/2015 LEAD ATTORNEY

Timothy M. Engel May, Adam, Gerdes & Thompson PO Box 160 Pierre, SD 57501 224−8803 Fax: 224−6289 Email: tme@mayadam.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Marty Jackley in his official capacity as Attorney General

represented by Ellie J. Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey P. Hallem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roxanne Giedd (See above for address) TERMINATED: 08/11/2015 LEAD ATTORNEY

Timothy M. Engel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Doneen Hollingsworth in her official capacity as Secretary of Health TERMINATED: 09/02/2015

represented by Ellie J. Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey P. Hallem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roxanne Giedd (See above for address) TERMINATED: 08/11/2015 LEAD ATTORNEY

Defendant
Trevor Jones in his official capacity as Secretary of Public Safety

represented by Ellie J. Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey P. Hallem (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roxanne Giedd

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 8 of 14

(See above for address) TERMINATED: 08/11/2015 LEAD ATTORNEY

Timothy M. Engel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Donna Mayer in her official capacity as Pennington County Register of Deeds TERMINATED: 06/16/2014

represented by Justin L. Bell May, Adam, Gerdes & Thompson, LLP PO Box 160 Pierre, SD 57501 (605) 224−8803 Fax: (605) 224−6289 Email: jlb@mayadam.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. Anderson May, Adam, Gerdes & Thompson PO Box 160 Pierre, SD 57501 224−8803 Fax: 224−6289 Email: rba@mayadam.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Carol Sherman in her official capacity as Brown County Register of Deeds

represented by Justin L. Bell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kimberley Malsam−Rysdon in her official capacity as Secretary of Health

represented by Ellie J. Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy M. Engel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Larry Pressler 5105 S. Rolling Green Ave. Sioux Falls, SD 57108 202−210−5330

Amicus
Walter D. Geiszler 3600 S. Palisade Ln. Sioux Falls, SD 57106

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 9 of 14
605−359−4329
Amicus Darren Matthes 5508 S Danberry Dr Sioux Falls, SD 57106 605−951−8932

Date Filed 05/22/2014
05/22/2014 05/22/2014 05/22/2014 05/22/2014 05/27/2014
06/10/2014 06/16/2014
06/17/2014 06/17/2014 06/17/2014 06/17/2014 06/18/2014 06/27/2014 06/27/2014 07/02/2014

# Docket Text
1 COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY RELIEF filed by Monica Serling−Swank, Greg Kniffen, Clay Schweitzer, Barbara Wright, Jennie Rosenbrahn, Mark Church, Krystal Cosby, Nancy Rosenbrahn, Lynn Serling−Swank, Kaitlynn Hoerner, Ashley Wright, Jeremy Coller. (DJP) (Entered: 05/22/2014)
2 CIVIL COVER SHEET. (DJP) (Entered: 05/22/2014)
3 Filing fee received: Fee Amount: $500.00 ($400 for filing fee, $100 for PHV fee) Receipt No.: #32929. (DJP) (Entered: 05/22/2014)
4 Summons Issued as to All Defendants (handed one true copy of each to Attorney Voigt) (DJP) (Entered: 05/22/2014)
5 MOTION for Attorney Joshua A. Newville to be Admitted Pro Hac Vice by All Plaintiffs. (DJP) (Entered: 05/22/2014)
6 ORDER granting 5 Motion for Admission Pro Hac Vice of Attorney Joshua A. Newville for Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright. Signed by U.S. District Judge Karen E. Schreier on 5/27/14. (SLW) (Entered: 05/27/2014)
7 NOTICE of Appearance by Justin Lee Bell on behalf of Donna Mayer, Carol Sherman. (Bell, Justin) (Entered: 06/10/2014)
8 NOTICE of dismissal of party Donna Mayer by Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright . (Voigt, Debra) Modified to add text on 6/17/2014 (JLS). (Entered: 06/16/2014)
9 (FILED IN ERROR) MOTION to Dismiss Under Fed. R. Civ. P. 12(b)(6) by Doneen Hollingsworth, Marty Jackley, Trevor Jones, Carol Sherman. (Giedd, Roxanne) Modified to add text on 6/18/2014 (JLS). (Entered: 06/17/2014)
NOTICE of Filing Error: 9 Motion to Dismiss was filed in error and should be disregarded. (Giedd, Roxanne) (Entered: 06/17/2014)
10 MOTION to Dismiss Under Fed. R. Civ. P. 12(b)(6) by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones, Carol Sherman. (Giedd, Roxanne) (Entered: 06/17/2014)
11 MEMORANDUM in Support re 10 MOTION to Dismiss Under Fed. R. Civ. P. 12(b)(6) filed by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones, Carol Sherman. (Giedd, Roxanne) (Entered: 06/17/2014)
12 Amicus Curiae Supporting Gay Marriage in South Dakota by Amicus Larry Pressler. (SLW) (Entered: 06/18/2014)
13 AMICUS BRIEF by Amicus Walter D. Geiszler. (SLW) (Entered: 06/27/2014)
14 AMICUS BRIEF by Amicus Darren Matthes. (JLS) (Entered: 06/27/2014)
15 MOTION for Leave to File Excess Pages To Extend Word Count by Jennie Rosenbrahn. (Voigt, Debra) (Entered: 07/02/2014)

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 10 of 14

07/02/2014 07/02/2014 07/03/2014 07/03/2014 07/03/2014 07/03/2014
07/03/2014
07/03/2014 07/03/2014 07/07/2014 07/07/2014 07/08/2014 07/09/2014

16 MEMORANDUM in Support re 15 MOTION for Leave to File Excess Pages To Extend Word Count filed by All Plaintiffs. (Voigt, Debra) (Entered: 07/02/2014)
17 TEXT ORDER granting 15 Motion for Leave to File Excess Pages. Signed by U.S. District Judge Karen E. Schreier on 07/02/2014. (KC) (Entered: 07/02/2014)
18 MOTION for Attorney Shannon P. Minter to be Admitted Pro Hac Vice (paid $100 PHV fee; receipt number 0869−1823322), by Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright. (Voigt, Debra) Modified text on 7/7/2014 (JLS). (Entered: 07/03/2014)
19 MOTION for Attorney Christopher Stoll to be Admitted Pro Hac Vice (paid $100 PHV fee; receipt number 0869−1823323) by Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright. (Voigt, Debra) (Entered: 07/03/2014)
20 MOTION for Summary Judgment by Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright. (Voigt, Debra) (Entered: 07/03/2014)
21 AFFIDAVIT in Support re 20 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit − House State Affairs Committee Monitor Report Form − dated 1/24/96, # 2 Exhibit − 2006 Ballot Question Pamphlet, # 3 Exhibit − Declaration of Jennie Rosenbrahn, # 4 Exhibit − Declaration of Nancy Rosenbrahn, # 5 Exhibit − Supplemental Application for Name Change, # 6 Exhibit − Declaration of Jeremy Coller, # 7 Exhibit − Declaration of Clay Schweitzer, # 8 Exhibit − Declaration of Lynn Serling−Swank, # 9 Exhibit − Declaration of Monica Serling−Swank, # 10 Exhibit − Declaration of Krystal Cosby, # 11 Exhibit − Declaration of Kaitlynn Hoerner, # 12 Exhibit − Declaration of Barbara Wright, # 13 Exhibit − Declaration of Ashley Wright, # 14 Exhibit − Declaration of Greg Kniffen, # 15 Exhibit − Declaration of Mark Church)(Voigt, Debra) Modified to add exhibit description on 7/8/2014 (JLS). (Entered: 07/03/2014)
22 (FILED IN ERROR) STATEMENT OF Undisputed MATERIAL FACTS re 20 Motion for Summary Judgment, by Plaintiffs Monica Serling−Swank, Greg Kniffen, Clay Schweitzer, Barbara Wright, Jennie Rosenbrahn, Mark Church, Krystal Cosby, Nancy Rosenbrahn, Lynn Serling−Swank, Kaitlynn Hoerner, Ashley Wright, Jeremy Coller filed by All Plaintiffs. (Voigt, Debra) Modified to update text on 7/10/2014 (JLS). (Entered: 07/03/2014)
23 MEMORANDUM in Support re 20 MOTION for Summary Judgment filed by All Plaintiffs. (Voigt, Debra) (Entered: 07/03/2014)
24 MEMORANDUM in Opposition re 10 MOTION to Dismiss Under Fed. R. Civ. P. 12(b)(6) filed by All Plaintiffs. (Voigt, Debra) (Entered: 07/03/2014)
25 REQUEST for Hearing on Motion by Plaintiffs Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright re 20 MOTION for Summary Judgment . (Voigt, Debra) (Entered: 07/07/2014)
26 ORDER granting 18 Motion for Admission Pro Hac Vice of Shannon P. Minter; granting 19 Motion for Admission Pro Hac Vice of Christopher F. Stoll. Signed by U.S. District Judge Karen E. Schreier on 7/7/2014. (KC) (Entered: 07/07/2014)
27 STATEMENT OF Undisputed MATERIAL FACTS re 20 Motion for Summary Judgment, by Plaintiffs Monica Serling−Swank, Greg Kniffen, Clay Schweitzer, Barbara Wright, Jennie Rosenbrahn, Mark Church, Krystal Cosby, Nancy Rosenbrahn, Lynn Serling−Swank, Kaitlynn Hoerner, Ashley Wright, Jeremy Coller filed by All Plaintiffs. (Voigt, Debra) (Entered: 07/08/2014)
NOTICE of Filing Error: 22 Statement of Material Facts, was filed in error and should be disregarded. (Voigt, Debra) (Entered: 07/09/2014)

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 11 of 14

07/14/2014
07/14/2014 07/15/2014 07/24/2014
10/08/2014
10/17/2014
10/24/2014
10/27/2014 11/07/2014
11/07/2014 11/14/2014 11/17/2014
11/17/2014 11/25/2014 11/25/2014 11/25/2014 11/25/2014

28 MOTION to Extend Deadlines and Motion to Defer Response to Plaintiff's Motion for Summary Judgment by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones. (Attachments: # 1 Affidavit of Giedd)(Giedd, Roxanne) (Entered: 07/14/2014)
29 REPLY to 23 Memorandum in Support of Motion filed by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones. (Giedd, Roxanne) (Entered: 07/14/2014)
30 MEMORANDUM in Opposition re 28 MOTION to Extend Deadlines and Motion to Defer Response to Plaintiff's Motion for Summary Judgment filed by All Plaintiffs. (Voigt, Debra) (Entered: 07/15/2014)
31 ORDER granting 28 Defendants' Motion to Extend Deadline to respond to plaintiffs' motion for summary judgment until 10 days after the court has ruled on the motion to dismiss for good cause shown. Signed by U.S. District Judge Karen E. Schreier on July 24, 2014. (Schreier, Karen) (Entered: 07/24/2014)
32 ORDER Setting Hearing on Motion 10 . MOTION to Dismiss Under Fed. R. Civ. P. 12(b)(6). Motion Hearing set for 10/17/2014 at 09:00 AM in Sioux Falls Courtroom 2* before U.S. District Judge Karen E. Schreier. Signed by U.S. District Judge Karen E. Schreier on 10/8/2014. (KC) (Entered: 10/08/2014)
33 Motion Hearing held on 10/17/2014 re 10 MOTION to Dismiss Under Fed. R. Civ. P. 12(b)(6) filed by Trevor Jones, Dennis Daugaard, Carol Sherman, Marty Jackley, Doneen Hollingsworth before U.S. District Judge Karen E. Schreier (Court Reporter Jill Connelly) (DJP) (Entered: 10/17/2014)
34 SUPPLEMENT by Defendants Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones re 10 MOTION to Dismiss Under Fed. R. Civ. P. 12(b)(6) . (Attachments: # 1 Exhibit Exhibit A − Decision and Order Ada Conde−Vidal et al v Alejandro Garcia−Padilla)(Giedd, Roxanne) (Entered: 10/24/2014)
35 JOINDER by Defendant Carol Sherman re 34 Supplement, . (Bell, Justin) (Entered: 10/27/2014)
36 SUPPLEMENT by Defendants Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones of Later Case Authority in Support of Defendants' Motion to Dismiss (Doc. 10). (Attachments: # 1 Exhibit A − Opinion and Order in DeBoer v Snyder)(Giedd, Roxanne) (Entered: 11/07/2014)
37 JOINDER by Defendant Carol Sherman re 36 Supplement, . (Bell, Justin) (Entered: 11/07/2014)
38 ORDER granting in part and denying in part 10 Motion to Dismiss. Signed by U.S. District Judge Karen E. Schreier on 11/14/2014. (KC) (Entered: 11/14/2014)
39 UNOPPOSED MOTION for Leave to Exceed Page Limitation by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones, Carol Sherman. (Giedd, Roxanne) Modified by editing docket text on 11/17/2014 (DLC). (Entered: 11/17/2014)
40 ORDER granting 39 Motion for Leave to exceed page limitation. Signed by U.S. District Judge Karen E. Schreier on 11/17/2014. (KC) (Entered: 11/17/2014)
41 RESPONSE to Motion re 20 MOTION for Summary Judgment filed by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones. (Giedd, Roxanne) (Entered: 11/25/2014)
42 DEFENDANTS' ANSWER to 1 Complaint, by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones. (Giedd, Roxanne) (Entered: 11/25/2014)
43 MOTION for Summary Judgment by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones. (Giedd, Roxanne) (Entered: 11/25/2014)
44 MEMORANDUM in Support re 43 MOTION for Summary Judgment filed by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones. (Giedd, Roxanne) (Entered: 11/25/2014)

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 12 of 14

11/25/2014 11/25/2014
12/01/2014 12/02/2014 12/08/2014 01/12/2015 01/12/2015
01/13/2015 01/26/2015
01/26/2015 01/26/2015 01/26/2015 01/27/2015 01/27/2015

45 STATEMENT OF MATERIAL FACTS by Defendants Marty Jackley, Dennis Daugaard, Doneen Hollingsworth, Trevor Jones filed by Marty Jackley, Dennis Daugaard, Doneen Hollingsworth, Trevor Jones. (Attachments: # 1 Attachment A − Affidavit of Chris A. Nelson)(Giedd, Roxanne) (Entered: 11/25/2014)
46 MOTION FOR JUDICIAL NOTICE by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones. (Attachments: # 1 Attachment 1 − 1862 Laws of Dakota Territory Act Regulating Marriage ch 59, # 2 Attachment 2 − 1883 Laws of Dakota Territory Husband and Wife − When May Sell and Encumber Property, Ch. 68, # 3 Attachment 3 − 1890 SD Session Laws, Ch 105, incorporating territorial laws, # 4 Attachment 4 − 1890 SD Session Laws ch 109, # 5 Attachment 5 − SD 1903 Revised Code, Civil Code, Part 3, # 6 Attachment 6 (Part 1) − SD 1919 Code Personal Relations, # 7 Attachment 6 (Part 2) − SD 1919 Code Personal Relations, # 8 Attachment 8 − 1961 SD Session Law ch 52, # 9 Attachment 9 − 1975 SD Session Laws Ch 178, # 10 Attachment 9 − 1975 SD Session Laws, ch 178, # 11 Attachment 10 − 1993 SD Session Laws ch 191, # 12 Attachment 11 − 1996 SD Session laws, ch 161, # 13 Attachment 12 − SD Session Laws 2000, ch. 115, # 14 Attachment 13 − Table of State Marriage Definitions)(Giedd, Roxanne) (Entered: 11/25/2014)
47 REPLY to Motion Response re 20 MOTION for Summary Judgment and Response to 43 Defendants' Motion for Summary Judgment filed by All Plaintiffs. (Voigt, Debra) Modified by creating link to Doc. 43 on 12/2/2014 (DLC). (Entered: 12/01/2014)
48 RESPONSE to Motion re 46 MOTION FOR JUDICIAL NOTICE and Notice of Non−Opposition filed by All Plaintiffs. (Voigt, Debra) (Entered: 12/02/2014)
49 REPLY to 47 Reply to Motion Response filed by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones. (Giedd, Roxanne) (Entered: 12/08/2014)
50 ORDER granting 20 Motion for Summary Judgment; denying 43 Motion for Summary Judgment; granting 46 Motion for judicial notice. Signed by U.S. District Judge Karen E. Schreier on 1/12/2015. (KC) (Entered: 01/12/2015)
51 JUDGMENT in favor of Ashley Wright, Barbara Wright, Clay Schweitzer, Greg Kniffen, Jennie Rosenbrahn, Jeremy Coller, Kaitlynn Hoerner, Krystal Cosby, Lynn Serling−Swank, Mark Church, Monica Serling−Swank, Nancy Rosenbrahn against Carol Sherman, Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones. Signed by U.S. District Judge Karen E. Schreier on 1/12/2015. (KC) (Entered: 01/12/2015)
52 NOTICE of Appearance by Ellie J. Bailey on behalf of Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones. (Bailey, Ellie) (Entered: 01/13/2015)
53 Joint MOTION to Extend Deadlines To Petition For Attorneys' Fees and Costs by Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright. (Voigt, Debra) Modified by editing docket text on 1/26/2015 (DLC). (Entered: 01/26/2015)
54 TEXT ORDER granting 53 Motion to Extend Deadlines for any request for costs or fees. Signed by U.S. District Judge Karen E. Schreier on 1/26/2015. (KC) (Entered: 01/26/2015)
56 NOTICE OF APPEAL as to 50 Order on Motion for Summary Judgment,, Order on Motion for Miscellaneous Relief, 51 Judgment, by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones, Carol Sherman. (SAT) (Entered: 01/27/2015)
58 Filing fee received: Fee Amount: $505.00, Receipt No.: #SDX300002337. (SAT) (Entered: 01/27/2015)
55 NOTICE of Appearance by Kylie M. Riggins on behalf of All Plaintiffs. (Riggins, Kylie) (Entered: 01/27/2015)
57 TRANSMITTAL of Notice of Appeal to 8th Circuit Court of Appeals re 56 Notice of Appeal (SAT) (Entered: 01/27/2015)

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 13 of 14

01/28/2015 02/03/2015 02/04/2015
02/04/2015 02/05/2015 02/10/2015
02/10/2015 02/10/2015 02/12/2015
02/13/2015
03/02/2015 03/02/2015 03/11/2015 03/11/2015 04/29/2015

59 USCA Case Number and Appeal Briefing Schedule Order for 56 Notice of Appeal filed by Trevor Jones, Dennis Daugaard, Carol Sherman, Marty Jackley, Doneen Hollingsworth. USCA Case Number: 15−1186. (TAL) (Entered: 01/29/2015)
60 ORDER of USCA granting parties' joint motion to expedite appeal as to 56 Notice of Appeal filed by Trevor Jones, Dennis Daugaard, Carol Sherman, Marty Jackley, Doneen Hollingsworth (TAL) (Entered: 02/03/2015)
61 TRANSCRIPT of Proceedings re 33 Motion Hearing, held on 10−17−2014 before Judge Karen E. Schreier. Court Reporter/Transcriber: Jill Connelly, Telephone number 605−330−6669. Transcript may be viewed at the Clerk's Office public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/2/2015. Redacted Transcript Deadline set for 3/12/2015. Release of Transcript Restriction set for 5/8/2015. (JC) (Entered: 02/04/2015)
62 NOTICE of Filing of Official Transcript re: 33 Motion Hearing,. Notice mailed to non−ecf counsel. (JC) (Entered: 02/04/2015)
63 Letter from Clerk's office to COA enclosing Doc. 61 (Transcript of Motions Hearing held 10−17−14) (DJP) (Entered: 02/05/2015)
64 FILED IN ERROR Emergency MOTION to Vacate Stay on Judgment by Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright. (Voigt, Debra) Modified by editing docket text on 2/11/2015 (DLC). (Entered: 02/10/2015)
NOTICE of Filing Error: 64 Motion to Vacate, was filed in error and should be disregarded. (Voigt, Debra) (Entered: 02/10/2015)
65 Emergency MOTION to Vacate Stay on Judgment by Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright. (Voigt, Debra) (Entered: 02/10/2015)
66 MOTION to Expedite Response Deadline on Plaintiffs' Emergency Motion to Vacate Stay of Judgment by Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright. (Riggins, Kylie) (Entered: 02/12/2015)
67 RESPONSE to Motion re 65 Emergency MOTION to Vacate Stay on Judgment filed by Dennis Daugaard, Doneen Hollingsworth, Marty Jackley, Trevor Jones, Carol Sherman. (Attachments: # 1 Exhibit A − US 8th Cir Court of Appeals − Case Nos. 14−13779 and 14−3780 Lawson, et al. v. Kelly, et al. − Order denying Appelles' Motion to Vacate Stay and granting Motion to Expedite appeal dated 01/22/15, # 2 Exhibit B − 8th Cir Court of Appeals − Case No. 15−1186 − Rosenbrahn, et al. v. Daugaard, et al. − Case No. 15−1186 − Order granting parties' joint motion to expedite appeal and notice of oral agrument dated this 02/03/15)(Hallem, Jeffrey) (Entered: 02/13/2015)
68 ORDER denying 65 Motion to Vacate ; denying as moot 66 Motion to Expedite. Signed by U.S. District Judge Karen E. Schreier on 3/2/2015. (KC) (Entered: 03/02/2015)
TRANSMITTAL of Subsequent Filing to 8th Circuit Court of Appeals re 68 Order on Motion to Vacate, Order on Motion to Expedite (DLC) (Entered: 03/02/2015)
69 ORDER of USCA as to 56 Notice of Appeal filed by Trevor Jones, Dennis Daugaard, Carol Sherman, Marty Jackley, Doneen Hollingsworth (SAT) (Entered: 03/12/2015)
70 ORDER of USCA as to 56 Notice of Appeal filed by Trevor Jones, Dennis Daugaard, Carol Sherman, Marty Jackley, Doneen Hollingsworth (SAT) (Entered: 03/12/2015)
71 ORDER of USCA deferring consideration of case pending Supreme Court ruling in Nos. 14−556, 15−562, 14−571 & 14−574 as to 56 Notice of Appeal filed by Trevor Jones, Dennis Daugaard, Carol Sherman, Marty Jackley, Doneen Hollingsworth (TAL) (Entered: 04/30/2015)

Case: 4:14-cv-4081 As of: 11/05/2017 01:32 PM CST 14 of 14

08/11/2015 08/11/2015 08/11/2015 09/01/2015
09/02/2015
09/02/2015 09/09/2015 09/09/2015 09/25/2015
09/28/2015 09/30/2015 10/13/2015

72 MOTION to Vacate Stay of Judgment by Jennie Rosenbrahn. (Riggins, Kylie) (Entered: 08/11/2015)
73 Per Curiam OPINION of USCA as to 56 Notice of Appeal filed by Trevor Jones, Dennis Daugaard, Carol Sherman, Marty Jackley, Doneen Hollingsworth (TAL) (Entered: 08/11/2015)
74 JUDGMENT of USCA affirming the District Court judgment as to 56 Notice of Appeal filed by Trevor Jones, Dennis Daugaard, Carol Sherman, Marty Jackley, Doneen Hollingsworth (TAL) (Entered: 08/11/2015)
75 Joint MOTION to Extend Deadlines to Petition for Attorneys' Fees and Costs by Mark Church, Jeremy Coller, Krystal Cosby, Walter D. Geiszler, Kaitlynn Hoerner, Greg Kniffen, Darren Matthes, Larry Pressler, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright. (Voigt, Debra) (Entered: 09/01/2015)
76 ORDER granting 75 Motion to Extend Deadlines to petition for attorneys' fees and costs for good cause shown and agreement of the parties. Notwithstanding any other provision of law, including without limitation Fed. R. Civ. P. 54 and Local Rule 54.1, the deadline for any requests concerning attorneys fees or costs is extended until 11:59 PM on October 1, 2015. Signed by U.S. District Judge Karen E. Schreier on September 2, 2015. (Schreier, Karen) (Entered: 09/02/2015)
77 NOTICE of Appearance by Timothy M. Engel on behalf of Dennis Daugaard, Marty Jackley, Trevor Jones, Kimberley Malsam−Rysdon. (Engel, Timothy) (Entered: 09/02/2015)
78 MANDATE from 8th Circuit COA affirming the decision of the District Court as to 56 Notice of Appeal filed by Trevor Jones, Dennis Daugaard, Carol Sherman, Marty Jackley, Doneen Hollingsworth (TAL) (Entered: 09/09/2015)
79 ORDER granting 72 Motion to Vacate Stay in light of receipt of the Mandate from the Eighth Circuit Court of Appeals. Signed by U.S. District Judge Karen E. Schreier on September 9, 2015. (Schreier, Karen) (Entered: 09/09/2015)
80 Joint MOTION for Attorney Fees and Costs by Mark Church, Jeremy Coller, Krystal Cosby, Kaitlynn Hoerner, Greg Kniffen, Jennie Rosenbrahn, Nancy Rosenbrahn, Clay Schweitzer, Lynn Serling−Swank, Monica Serling−Swank, Ashley Wright, Barbara Wright. (Attachments: # 1 Text of Proposed Order Ex A: Proposed Order)(Voigt, Debra) (Entered: 09/25/2015)
81 ORDER granting 80 Motion for Attorney Fees. Signed by U.S. District Judge Karen E. Schreier on 9/28/15. (DJP) (Entered: 09/28/2015)
82 ORDER of USCA Awarding Appellate Attorney's Fees and Costs as to 56 Notice of Appeal filed by Trevor Jones, Dennis Daugaard, Carol Sherman, Marty Jackley, Doneen Hollingsworth (TAL) (Entered: 10/01/2015)
83 SATISFACTION OF JUDGMENT re 81 Order on Motion for Attorney Fees by Dennis Daugaard, Marty Jackley, Trevor Jones, Kimberley Malsam−Rysdon (Engel, Timothy) (Entered: 10/13/2015)