Lawsuit filed against South Dakota's gay marriage ban; North Dakota's last unchallenged in US

Brady McCombs And Lisa Baumann / The Associated Press
May 22, 2014 06:42 AM

Katelyn Walls, seated, 25, of Parkersburg, W. Va., her sister Merideth Paff, standing, at right, 30, of Erie, Pa., and Paff's son 3-year-old Nicholas Paff, seated, at right, attend a rally at Perry Square in Erie, Pa., on Tuesday, May 20, 2014, in support of marriage equality in Pennsylvania. About 150 people turned out to celebrate a federal judge's overturning of Pennsylvania's ban on gay marriage. (AP Photo/Erie Times-News, Christopher Millette) MAGAZINES OUT.

SIOUX FALLS, S.D. - Six couples filed a federal lawsuit Thursday to block South Dakota's ban on same-sex marriage, leaving North Dakota as the only state with an unchallenged ban, as judges continue to overturn laws restricting marriage around the United States.

The South Dakota lawsuit challenges both the northwestern state's ban on gay marriage and its refusal to recognize marriages of same-sex couples who legally wed in other states. The attorney representing the South Dakota couples, Josh Newville of Minneapolis, said he's also seriously considering filing a similar challenge in North Dakota.

The lawsuit means cases are pending in 30 states with gay marriage bans. Since the U.S. Supreme Court struck down part of the federal Defence of Marriage Act in a landmark ruling last year, gay marriage advocates have celebrated a stunning string of legal victories as judges have overturned several bans, many in socially conservative states. The Supreme Court is expected to eventually settle the matter.

In 19 states and the Washington capital district, gay couples already can wed, with Oregon and Pennsylvania becoming the latest to join the list this week when federal judges struck down their bans and officials decided not to appeal. Pennsylvania on Tuesday became the last state in the Northeast to legalize same-sex marriage when a federal judge tossed out its ban and the state's Republican governor said he wouldn't appeal the ruling.

South Dakota Attorney General Marty Jackley has said he's obligated by law to defend both the state constitution and state statutes. He's listed among the defendants, along with Gov. Dennis Daugaard. It's possible that the U.S. Supreme Court or another federal court could hear another state's lawsuit first, which would put South Dakota's case on hold, he said.

Five of the couples already got married in Iowa, Connecticut and Minnesota. The sixth couple was denied a marriage license Thursday, Newville said.

The complaint seeks a declaration that the statute and constitutional bans are unconstitutional and asks that the defendants be prevented from enforcing the bans and be required to issue marriage licenses to same-sex couples and recognize gay marriages from other states. It also seeks reimbursement for lawyers and other costs.

North Dakota voters in 2004 overwhelmingly passed a constitutional ban on same-sex marriage.

Newville said several couples from North Dakota have contacted him about possibly representing them for a legal challenge in that state.

Same-sex marriage advocates in both North Dakota and South Dakota said the fact that sexual orientation and gender identity are not protected classes for matters such as housing and employment has discouraged couples from coming forward.

Meanwhile in Philadelphia, judges plan to be at City Hall on Friday to officiate weddings. Couples who got licenses Tuesday will be eligible to marry Friday under the state's three-day waiting period.


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