Mpls' Josh Newville wins gay marriage victory in Dakotas, says law trumps public opinion

The attorney trying to bring marriage equality to North and South Dakota is actually based in Minneapolis.

And Josh Newville scored a significant victory last Friday when United States District of South Dakota Judge Karen Schreier rejected the state's motion to throw out a lawsuit he filed earlier this year on behalf of six South Dakota couples who want to strike down the state's same-sex marriage ban.

The state's motion, which was filed by Governor Dennis Daugaard, Attorney General Marty Jackley, Secretary of Health Doneen Hollingsworth, and other officials, cited two cases -- one from the 8th Circuit federal court in 2006, the other from Minnesota in 1971 -- to argue that precedent is on the state's side.

But Judge Schreier ruled that not only are those cases not directly pertinent to Newville's lawsuit, but more recent litigation indicates precedent may actually be on the side of the same-sex couples.

The cases cited by the state "did not address whether marriage is a fundamental right," Schreier wrote. "The Supreme Court's equal protection and due process doctrines have evolved substantially since [the 1971 case] was decided, particularly those doctrines as applied to homosexual citizens. As has been recognized by the Second, Fourth, Seventh, Ninth, and Tenth Circuits and numerous district courts... this court concludes that [the 1971 case] is no longer binding authority."

South Dakota officials were given 10 days to respond to Newville's request for summary judgement in favor of the same-sex couples who want to marry. They haven't yet filed their response as this is published.

Newville also filed a similar lawsuit earlier this year on behalf of same-sex couples in North Dakota who want to get married.

In 2004, an overwhelming majority of North Dakota voters approved a same-sex marriage ban -- the margin was 73 percent to 27 percent. South Dakota followed suit two years later, albeit by a narrower 52-to-48-percent margin.

Newville argues that even though public opinion in the Dakotas may not be on the side of his clients, moving toward marriage equality is the right thing for the courts to do.

"In Brown v. Board, if the Supreme Court hadn't stepped in and said, 'Segregation isn't constitutional,' how long would public opinion have taken to change on that issue?" he says. "The South Dakota Attorney General repeats that mantra at every opportunity -- that the people of South Dakota should define who has the right to marry, not federal judges, and it riles up the public and it makes the public who doesn't fully understand the judiciary and the political system, makes them angry at people who have been appointed to a lifetime of defending the constitution, and that's not okay in my mind."

"You really need to remember that we live in a country that has written things in the constitution for a reason," Newville continues. "It's more than just discrimination against gay people here, it's also about who we are as a country and who we are as a people and how we treat each other that's at play here."

Regardless of what happens with his cases, in light of a ruling earlier this month by the 6th District Court of Appeals upholding Michigan's same-sex marriage ban, Newville says he now expects the U.S. Supreme Court to weigh in on the issue.

That 6th Circuit ruling conflicts with other federal rulings favorable toward marriage equality.

"Now that there's a Circuit split it does seem more likely [the Supreme Court] will step in," Newville says.

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