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Same-sex marriage has been legal in South Dakota since June 26, 2015 when the U.S. Supreme Court ruled in Obergefell v. Hodges that the U.S. Constitution guarantees same-sex couples the right to marry. [1] Attorney General Marty Jackley issued a statement critical of the ruling but said South Dakota is obligated to comply and the state would recognize same-sex marriages. [2]
South Dakota voters adopted a constitutional amendment in November 2006 that defined marriage as the "union of a man and a woman" and prohibited the recognition of same-sex relationships under any other name, such as civil unions and domestic partnerships. [3] Similar restrictions appear in the state statutes as well. [4] [5]
In 2023, Representative Linda Duba introduced a bill to repeal the statutory ban and explicitly define marriage as the union of "two persons". A House committee voted 7–5 to kill the bill on February 13, 2023. [6]
On May 22, 2014, six same-sex couples filed a federal lawsuit against South Dakota officials seeking the right to marry and recognition of marriages performed in other jurisdictions. The suit, Rosenbrahn v. Daugaard, was brought by Minneapolis civil rights attorney Joshua A. Newville, who filed a similar lawsuit on behalf of seven same-sex couples in North Dakota on June 6, 2014. The suit named Governor Dennis Daugaard as the first-named defendant. [7] U.S. District Court Judge Karen Schreier heard oral arguments on October 17. The state defendants argued she was bound by the Eighth Circuit's decision in Citizens for Equal Protection v. Bruning , which the plaintiffs said did not address the questions they were raising in this case. [8] On November 12, Judge Schreier denied the defense's motion to dismiss. She found that Baker v. Nelson is no longer valid precedent and that Bruning did not address due process or the question of a fundamental right to marry. She dismissed the plaintiffs' claim that South Dakota violated their right to travel. [9] On January 12, 2015, she ruled for the plaintiffs, finding that South Dakota was depriving them of their fundamental right to marry. She stayed implementation of her ruling pending appeal. [10] On February 10, the plaintiffs asked her to lift the stay, citing the U.S. Supreme Court's denial of a stay in Alabama cases the previous day. [11] Two days later, they requested an expedited response to that request. [12] On March 2, 2015, Judge Schreier denied this motion. She concluded that once the defendants filed their notice of appeal, jurisdiction issue in the case, including the stay, would be transferred to the Eighth Circuit Court of Appeals. The Eighth Circuit announced on April 29, 2015, that it would defer consideration of the case, pending the U.S. Supreme Court's ruling in Obergefell v. Hodges in June 2015. [13]
On June 26, 2015, the U.S. Supreme Court ruled that laws depriving same-sex couples of the rights and responsibilities of marriage violate the Due Process and Equal Protection clauses of the Fourteenth Amendment, legalizing same-sex marriage nationwide in the United States. Attorney General Marty Jackley announced the state would comply, "Because we are a nation of laws the state will be required to follow the court's order that every state must recognize and license same-sex marriage." In light of this development, the Eighth Circuit affirmed the judgement of the district court on August 12, 2015. However, it left the decision of whether or not to vacate the stay of permanent injunction of the laws discriminating against same-sex couples to the district court. [14] On September 9, 2015, Judge Schreier granted the plaintiffs' motion to vacate the stay in light of the mandate from the Eighth Circuit.
Governor Daugaard announced the state would comply with the ruling, but said, "I would have preferred for this change to come through the democratic process, rather than the courts." Senator John Thune said he disagreed with the decision, "The court has issued its opinion, but on this particular issue, I do not agree with its conclusion." Representative Kristi Noem also disagreed with the ruling, and Senator Mike Rounds called it a "blow to state's rights". State Senator Brock Greenfield called it "judicial activism at its worst". Bishop Paul J. Swain of the Roman Catholic Diocese of Sioux Falls called the ruling "not a surprise but still a sad development". Methodist Bishop Bruce Ough declined to issue a formal stance, but stated that "[w]hile The United Methodist Church does not engage in partisan politics, we welcome all people and believe all have sacred worth.", and said the ruling would likely add "urgency to a longtime denominational debate" on the United Methodist Church's position on homosexuality. State Representative Karen Soli welcomed the court ruling, stating "In my own journey through the years, early in my life I wouldn't have felt that way but I've grown to understand that homosexuality is not something most people have a choice about. It's our job in society to accommodate them in ways that make it possible for these folks to be part of our society. It's time." The South Dakota chapter of the American Civil Liberties Union (ACLU) celebrated the decision, "Today's historic Supreme Court ruling means same-sex couples will soon have the freedom to marry and equal respect for their marriages across America. This ruling will bring joy to families, and final nationwide victory to the decades-long Freedom to Marry movement." The ACLU held a celebration party in Sioux Falls on June 26, handing out wedding cake to the newlyweds. Mark Church and Greg Kniffen, plaintiffs in Rosenbrahn, said they were "overjoyed", "We feel vindicated that we were on the right side of this argument all along." [15]
In January 2020, Representative Tony Randolph introduced a bill to prohibit the state from "enforcing, endorsing or favoring" same-sex marriage. The bill stood in clear violation of the U.S. Constitution, which under Obergefell guarantees same-sex couples the right to marry. The ACLU responded in a statement, "Marriage equality is the law of the land in South Dakota and the entire nation, no matter what half-baked legal theories anti-LGBTQ lawmakers try to put forward." [16] [17] The bill was withdrawn at Randolph's request on February 24, 2020. [18]
Same-sex marriage is legal on the reservation of the Oglala Sioux Tribe. A memorandum by the tribal attorney from January 25, 2016, confirmed that same-sex marriages are not prohibited under tribal law. The first same-sex marriage in the reservation was performed at the Tribal President's Office in Pine Ridge shortly thereafter. [19] On July 8, 2019, the Oglala Sioux Tribal Council passed a same-sex marriage ordinance in a 12–3 vote with one abstention, amending the Tribal Code to recognize same-sex marriages. [20]
While there are no records of same-sex marriages as understood from a Western perspective being performed in Native American cultures, there is evidence for identities and behaviours that may be placed on the LGBT spectrum. Many of these cultures recognized two-spirit individuals who were born male but wore women's clothing and performed everyday household work and artistic handiwork, such as beadwork and quillwork, which were regarded as belonging to the feminine sphere. [21] The Lakota people have traditionally recognized two-spirit people, known as winkte (pronounced [ˈwɪ̃ktɛ] ) in the Lakota language. Regarded as sacred, the winkte occupied a third gender role in Lakota society. They fulfilled ceremonial and spiritual roles, including preparing the traditional Sun Dance and as medicine people. Marriage with women was forbidden for most winkte, but some nevertheless married women and had children without giving up their winkte status. Often, winkte would marry already-married men who had wives and children. Chief Crazy Horse married one or two winkte in addition to his cisgender wives. Some winkte practiced polyandry, taking up to twelve husbands, while others remained unmarried, erecting their own tipis where they were visited by men for sexual intercourse. [21]
In the first month of legalization, 40 same-sex couples were granted marriage licenses in the state. [22] By June 26, 2016, 157 marriage licenses had been issued to same-sex couples in South Dakota. This made up around 2% of all marriage licenses issued in the state during that time, with a plurality in Minnehaha County at 40 licenses. [23] By June 2017, 283 same-sex couples had married in South Dakota. [24]
2018 estimates from the United States Census Bureau showed that there were about 1,500 same-sex households in South Dakota. The Bureau estimated that 77.8% of same-sex couples in the state were married. [25] The 2020 U.S. census showed that there were 787 married same-sex couple households (340 male couples and 447 female couples) and 726 unmarried same-sex couple households in South Dakota. [26]
A 2017 poll conducted by the Public Religion Research Institute found that 52% of South Dakotans supported same-sex marriage, while 37% were opposed and 11% were unsure or undecided. [27] A PRRI survey conducted between March 8 and November 9, 2021, showed that 61% of South Dakota respondents supported same-sex marriage, while 39% were opposed. This level of support was similar to neighboring states, including Nebraska and Wyoming at 58%, Montana at 62% and North Dakota at 69%. [28] According to a survey conducted by the same polling organization between March 11 and December 14, 2022, 63% of South Dakota respondents supported same-sex marriage, while 37% were opposed. [29]
Same-sex marriage has been legal in Florida since January 6, 2015, as a result of a ruling in Brenner v. Scott from the U.S. District Court for the Northern District of Florida. The court ruled the state's same-sex marriage ban unconstitutional on August 21, 2014. The order was stayed temporarily. State attempts at extending the stay failed, with the U.S. Supreme Court denying further extension on December 19, 2014. In addition, a state court ruling in Pareto v. Ruvin allowed same-sex couples to obtain marriage licenses in Miami-Dade County on the afternoon of January 5, 2015. In another state case challenging the state's denial of marriage rights to same-sex couples, a Monroe County court in Huntsman v. Heavilin stayed enforcement of its decision pending appeal and the stay expired on January 6, 2015.
Same-sex marriage has been legally recognized in Wisconsin since October 6, 2014, upon the resolution of a lawsuit challenging the state's ban on same-sex marriage. On October 6, the U.S. Supreme Court refused to hear an appeal of an appellate court ruling in Wolf v. Walker that had found Wisconsin's ban on same-sex marriage unconstitutional. The appellate court issued its order prohibiting enforcement of the state's ban on same-sex marriage the next day and Wisconsin counties began issuing marriage licenses to same-sex couples immediately. Wisconsin had previously recognized domestic partnerships, which afforded limited legal rights to same-sex couples, from August 2009 until they were discontinued in April 2018.
Same-sex marriage has been legally recognized in Wyoming since October 21, 2014. The U.S. state of Wyoming had previously prohibited state recognition of same-sex marriages by statute since 1977 and had enacted a more explicit ban in 2003. An attempt to enact legislation recognizing domestic partnerships as an alternative to marriage for same-sex couples failed in 2013. On October 17, 2014, a federal district court found the state's ban on same-sex marriage unconstitutional. Its ruling took effect on October 21 when state officials notified the court that they would not appeal the decision.
Same-sex marriage has been legal in Michigan since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. The U.S. state of Michigan had previously banned the recognition of same-sex unions in any form after a popular vote added an amendment to the Constitution of Michigan in 2004. A statute enacted in 1996 also banned both the licensing of same-sex marriages and the recognition of same-sex marriages from other jurisdictions.
Same-sex marriage has been legal in Arizona since October 17, 2014. The U.S. state had denied marriage rights to same-sex couples by statute since 1996 and by an amendment to its State Constitution approved by voters in 2008. On October 17, Judge John W. Sedwick ruled in two lawsuits that Arizona's ban on same-sex marriage was unconstitutional, and enjoined the state from enforcing its ban, effective immediately. Attorney General Tom Horne said the state would not appeal that ruling, and instructed county clerks to comply and issue marriage licenses to same-sex couples.
Same-sex marriage has been legal in South Carolina since a federal court order took effect on November 20, 2014. Another court ruling on November 18 had ordered the state to recognize same-sex marriages from other jurisdictions. Following the 2014 ruling of the Fourth Circuit Court of Appeals in Bostic v. Schaefer, which found Virginia's ban on same-sex marriage unconstitutional and set precedent on every state in the circuit, one judge accepted marriage license applications from same-sex couples until the South Carolina Supreme Court, in response to a request by the Attorney General, ordered him to stop. A federal district court ruled South Carolina's ban on same-sex marriage unconstitutional on November 12, with implementation of that decision stayed until noon on November 20. The first same-sex wedding ceremony was held on November 19.
Same-sex marriage has been legal in Louisiana since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. The court held that the denial of marriage rights to same-sex couples is unconstitutional, invalidating Louisiana's ban on same-sex marriage. The ruling clarified conflicting court rulings on whether state officials are obligated to license same-sex marriages. Governor Bobby Jindal confirmed on June 28 that Louisiana would comply with the ruling once the Fifth Circuit Court of Appeals reversed its decision in a Louisiana case, which the Fifth Circuit did on July 1. Jindal then said the state would not comply with the ruling until the U.S. District Court for the Eastern District of Louisiana reversed its judgment, which it did on July 2. All parishes now issue marriage licenses in accordance with federal law.
Same-sex marriage has been legal in Alabama since June 26, 2015, in accordance with the U.S. Supreme Court's ruling in Obergefell v. Hodges. Not all counties immediately complied with the ruling, copying behavior from the civil rights era when they had refused to perform interracial marriages. A year after the Supreme Court ruling, twelve counties would either issue licenses to no one or only to opposite-sex couples. By 2017, this number had dropped to only eight counties, with all eight refusing to issue licenses to anyone. In May 2019, the Alabama Legislature passed a bill replacing the option that counties issue marriage licenses and perform marriage ceremonies with the requirement of counties to record marriage certificates. Subsequently, all counties complied and announced on August 29, 2019 that they would record marriage certificates for interracial and same-sex couples. Previously, Alabama had banned the licensing of same-sex marriages and the recognition of such marriages from other jurisdictions by executive order in 1996, by statute in 1998, and by constitutional amendment in June 2006.
Same-sex marriage has been legally recognized in West Virginia since October 9, 2014. On July 28, 2014, a ruling by the Fourth Circuit Court of Appeals in Bostic v. Schaefer found Virginia's ban on same-sex marriage unconstitutional. On October 6, 2014, the U.S. Supreme Court denied certiorari in Bostic, allowing the ruling to take effect. As a result, on October 9, 2014, Governor Earl Ray Tomblin announced he was ordering state agencies to act in compliance with the controlling precedent in the Virginia case. Even though West Virginia's ban was not explicitly declared unconstitutional, the Fourth Circuit precedent made it certain the state's statutory ban would be overturned. The state started issuing marriage licenses to same-sex couples that same day. The U.S. District Court for the Southern District of West Virginia officially ruled the state's same-sex marriage ban unconstitutional on November 7, 2014.
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of South Dakota may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in South Dakota, and same-sex marriages have been recognized since June 2015 as a result of Obergefell v. Hodges. State statutes do not address discrimination on account of sexual orientation or gender identity; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal under federal law.
Same-sex marriage has been legal in North Dakota since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015, which invalidated state bans on same-sex marriage throughout the United States. Previously, North Dakota had restricted marriage to the "union of one man and one woman" both by statute and in its State Constitution.
Same-sex marriage has been legal in Nebraska since June 26, 2015, when the U.S. Supreme Court ruled in the case of Obergefell v. Hodges that the denial of marriage rights to same-sex couples violates the Fourteenth Amendment to the U.S. Constitution. Following the court ruling, Attorney General Doug Peterson announced that the state of Nebraska would comply and recognize same-sex marriages.
Same-sex marriage became legal in Kansas following the U.S. Supreme Court's decision in Obergefell v. Hodges on June 26, 2015, which found the denial of marriage rights to same-sex couples unconstitutional. By June 30, all 31 judicial districts and all 105 Kansas counties were issuing marriage licenses to same-sex couples or had agreed to do so. Kansas state agencies initially delayed recognition of same-sex marriages for purposes including but not limited to changing names, ascribing health benefits and filing joint tax returns, but began doing so on July 6.
Same-sex marriage has been legal in Mississippi since June 26, 2015. On November 25, 2014, U.S. District Court Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi ruled that Mississippi's ban on same-sex marriage was unconstitutional. Enforcement of his ruling was stayed pending appeal to the Fifth Circuit Court of Appeals. On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that the denial of marriage rights to same-sex couples violates the U.S. Constitution. On June 29, Attorney General Jim Hood ordered clerks to comply with the court ruling and issue marriage licenses to same-sex couples. The Fifth Circuit lifted its stay on July 1, and Judge Reeves ordered an end to Mississippi's enforcement of its same-sex marriage ban. However, until July 2, 2015, several counties in Mississippi continued to refuse to issue marriage licenses, including DeSoto, Jasper, Jones, Newton, Pontotoc, Simpson and Yalobusha.
Same-sex marriage has been legal in Missouri since the U.S. Supreme Court's landmark ruling in Obergefell v. Hodges, which struck down state bans on marriages between two people of the same sex on June 26, 2015. Prior to the court ruling, the state recognized same-sex marriages from other jurisdictions pursuant to a state court ruling in October 2014, and certain jurisdictions of the state performed same-sex marriage despite a statewide ban.
Same-sex marriage has been legal in Arkansas since the U.S. Supreme Court's landmark decision in Obergefell v. Hodges on June 26, 2015, striking down same-sex marriage bans nationwide. Prior to this, same-sex marriage in Arkansas was briefly legal for a period beginning on May 9, 2014, as a result of a ruling by Sixth Judicial Circuit Judge Chris Piazza striking down the state's constitutional and statutory bans on same-sex marriage as violating the U.S. Constitution. Approximately 541 same-sex couples received marriage licenses in several counties before the Arkansas Supreme Court stayed his ruling pending appeal on May 16, 2014.
De Leon v. Perry was a federal lawsuit challenging Texas marriage law, specifically the state's constitutional ban on same-sex marriage and corresponding statutes. A U.S. district court ruled in favor of the plaintiff same-sex couples on February 26, 2014, granting their motion for a preliminary injunction. The state defendants filed an interlocutory appeal before the United States Court of Appeals for the Fifth Circuit, as the disposition on the motion was not a final ruling in the case. On April 14, 2014, the plaintiffs filed a motion for an expedited hearing, which was denied on May 21, 2014. The plaintiffs filed another motion for an expedited hearing on October 6, 2014, after the Supreme Court of the United States denied appeals in other marriage equality cases, and the motion was granted on October 7, 2014, setting a hearing for November 2014. However, on October 27, 2014, the Fifth Circuit set oral arguments for January 9, 2015.
In Brenner v. Scott and its companion case, Grimsley v. Scott, a U.S. district court found Florida's constitutional and statutory same-sex marriage bans unconstitutional. On August 21, 2014, the court issued a preliminary injunction that prevents that state from enforcing its bans and then stayed its injunction until stays are lifted in the three same-sex marriage cases then petitioning for a writ of certiorari in the U.S. Supreme Court–Bostic, Bishop, and Kitchen–and for 91 days thereafter. When the district court's preliminary injunction took effect on January 6, 2015, enforcement of Florida's bans on same-sex marriage ended.
Joshua A. Newville, known as simply Josh Newville, is an American attorney, mediator, adjunct law professor, and investigative podcaster. He owns Newville PLC, a Minneapolis, MN-based law firm that focuses on employment law, civil rights and mediation.
Same-sex marriage has been legal in Georgia since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. Attorney General Sam Olens announced that Georgia would "adhere to the ruling of the Court", and the first couple married just one hour after the ruling was handed down. Previously, Georgia had banned same-sex marriage both by statute and its State Constitution.
