The number of marriage licenses issued to gay couples in South Dakota represents about 5 percent of the 839 licenses issued to all couples from June 26 to July 27. Photo:

The number of marriage licenses issued to gay couples in South Dakota represents about 5 percent of the 839 licenses issued to all couples from June 26 to July 27. Photo:

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

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

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

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

“It remains the state’s position that the institution of marriage should be defined by the voters of South Dakota and not the federal courts,” Jackley said.

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

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

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

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

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