Rosenbrahn v. Daugaard

• Decision Date: 11 August 2015
• Docket Number: No. 15–1186.,15–1186.
• Citation: 799 F.3d 918
• Parties: 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 Scholars; Gary J. Gates, Amici on Behalf of Appellee(s).
• Court: U.S. Court of Appeals — Eighth Circuit

799 F.3d 918

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–AppellantsLiberty, 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 Scholars; Gary J. Gates, Amici on Behalf of Appellee(s).

No. 15–1186.

United States Court of Appeals, Eighth Circuit.

Submitted: July 15, 2015.

Filed: Aug. 11, 2015.

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. 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 and Unitarian Universalist Association.

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

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