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:

PIERRE, S.D. — A federal judge presiding over a challenge to South Dakota’s gay marriage ban should bypass a trial and rule on the case, the state attorney general’s office argued Tuesday.

The office joined six same-sex couples who are suing the state in petitioning for summary judgment in the case. The state also asked in its filing Tuesday that U.S. District Court Judge Karen Schreier reject the challengers’ July motion that she rule in their favor.

Minneapolis attorney Josh Newville last May filed the federal lawsuit, which challenges a 1996 state law passed by the Legislature and a voter-approved 2006 constitutional amendment banning gay marriage. The lawsuit argues the state’s ban violates equal protection and due process guaranteed in the 14th Amendment to the U.S. Constitution.

South Dakota Attorney General Marty Jackley said lawmakers and the voters of South Dakota should have the authority to define marriage in the state, not the federal courts.

In mid-November, Schreier rejected the state’s motion to dismiss the lawsuit entirely, allowing the case to proceed, though she threw out one piece of Newville’s claims.

Newville said Tuesday that the state was late in filing the motion and response, which frustrated the same-sex couples challenging the ban.

“I had plaintiffs up last night that that were crying waiting for this filing,” Newville said.

Jackley said confusion over a rule – which would have allowed more time – and the court’s order that the response was due on Monday caused the slight delay, calling it “completely irrelevant.”

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Newville has two weeks to respond to the newest filings, and the case could be ready for consideration near the end of December.

Schreier could deny the motions and move the case to trial, grant either side’s motion for summary judgment in whole or in part, or order a hearing.

Jackley said he ultimately believes the issue will be decided by the 8th U.S. Circuit Court of Appeals or the U.S. Supreme Court. Newville is confident that the ban will be overturned.

“There will be marriage equality in South Dakota within the next eight months,” he said. “One way or the other, it’s going to happen.”

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