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South Dakota District Court Takes 6th Circuit Court of Appeals to School over Marriage Equality

It’s not often that a federal district court takes on an appellate court of a different circuit, but that’s exactly what happened earlier this week in South Dakota over state bans on marriage equality. Judge Karen E. Schreier of the South Dakota District Court ruled in Rosenbrahn v. Daugaard that South Dakota’s ban was unconstitutional, and in so doing, her opinion deftly took down the logic of the ruling by the 6th Circuit Court of Appeals that overturned a similar opinion in favor of marriage equality in DeBoer v Snyder coming out of Michigan.

The first part of Schreier’s opinion dealt with jurisdiction. Among other things, the state argued that the Tenth Amendment gives the states the right to do what they want with marriage laws, and Schreier was not impressed.

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.

For the states to win on the “no jurisdiction” argument, they will have to convince the 2015 Supreme Court that the 1967 Court was wrong to have accepted Loving v Virginia. [I look forward to hearing the questions in oral arguments about that. “Virginia has many marriages between people of different races. (pause to look at Justice Thomas) Are you seriously arguing that we should overturn the 1967 court in Loving v Virginia that affirmed marriage to be a fundamental right and thus struck down the ban on interracial marriage?” But I digress . . .]

The most powerful part of Schreier’s opinion, though, was the way in which she dismantled the arguments of the state, once she got through with the jurisdiction issues. When she ran through the roster of recent cases on marriage equality, she cited the 6th Circuit Court of Appeals opinion in DeBoer v Snyder, but she made it clear  that she is not at all impressed with the logic of that court, whether the argument is made by those judges in their courtroom or by the lawyers for the state in hers. Indeed, she indirectly skewers the 6th Circuit for trying to overturn the Supreme Court on both pillars of their opinion. The 6th circuit asserted that those wishing to change the marriage laws should work through the democratic process and proceed slowly and cautiously, and Schreier took them to school

First, on the democratic process:

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 process is the proper mechanism to extend the right to marriage to same-sex couples).

That last sentence was a poke in the eye of the 6th Circuit with a very sharp stick. She made her point at the end of the previous sentence, but went out of her way (“But see DeBoer . . .”) to show that the 6th Circuit was wrong.

Later on, Schreier takes on the other rationale put forward by the 6th Circuit in overruling the Michigan district court — the need to go slow with any big social changes like this:

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

That footnote #13 is where things get interesting:

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.

She’s skewering not only the state’s lawyers, but also the 6th Circuit again, because again they failed to recognize a SCOTUS precedent cited numerous times. At least this time she was a bit more restrained about it and didn’t call them out directly by commenting on how badly they misunderstood things by adding another “But see DeBoer . . .” slap.


So, it’s on to the Supreme Court, which to the surprise of almost no one, agreed yesterday afternoon to hear an appeal of four appellate cases on marriage equality. The order limits the scope of the arguments to two questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions.

The case is slated to be argued in this term’s last session for oral arguments — April 20-29 — with briefs coming in during the intervening months.

I suspect the briefers for equality will be making much of the work of Judge Schreier, Judge Friedman, and other masterful district and appellate courts.


h/t for the photo to Roger Sayles aka Serfs Up! and used under Creative Commons Attribution-NoDerivs 2.0 Generic license.

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I'm an ordained Lutheran pastor with a passion for language, progressive politics, and the intersection of people's inner sets of ideals and beliefs (aka "faith" to many) and their political actions. I mostly comment around here, but offer a weekly post or two as well. With the role that conservative Christianity plays in the current Republican politics, I believe that progressives ignore the dynamics of religion, religious language, and religiously-inspired actions at our own peril. I am also incensed at what the TheoCons have done to the public impression of Christianity, and don't want their twisted version of it to go unchallenged in the wider world. I'm a midwesterner, now living in the Kansas City area, but also spent ten years living in the SF Bay area. I'm married to a wonderful microbiologist (she's wonderful all the way around, not just at science) and have a great little Kid, for whom I am the primary caretaker these days. I love the discussions around here, especially the combination of humor and seriousness that lets us take on incredibly tough stuff while keeping it all in perspective and treating one another with respect.

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