Jennie Rosenbrahn, et al v. Dennis Daugaard, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Lavenski R. Smith and Duane Benton (PUBLISHED) [4304560] [15-1186]

United States Court of Appeals
For the Eighth Circuit
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No. 15-1186
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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
lllllllllllllllllllll 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
lllllllllllllllllllll 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
lllllllllllllllllllllAmici 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

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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
lllllllllllllllllllllAmici on Behalf of Appellee(s)
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Appeal from United States District Court
for the District of South Dakota - Sioux Falls
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Submitted: July 15, 2015
Filed: August 11, 2015
[Published]
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Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
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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

1

The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
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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, 25-138) 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, 135 S. Ct. 2584 (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 liberty of the
person, and under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment couples of the same-sex may not be deprived of
that right and that liberty. The Court now holds that same-sex couples
may exercise the fundamental right to marry. No longer may this liberty
be denied to them. Baker v. Nelson [, 409 U.S. 810 (1972),] must be and
now is overruled, and the State laws challenged by Petitioners in these
cases are now held invalid to the extent they exclude same-sex couples
from civil marriage on the same terms and conditions as opposite-sex
couples.
Obergefell, 135 S. Ct. at 2604-05. The Supreme Court also noted,
[I]t must be emphasized that religions, and those who adhere to religious
doctrines, may continue to advocate with utmost, sincere conviction
that, by divine precepts, same-sex marriage should not be condoned.
The First Amendment ensures that religious organizations and persons
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are given proper protection as they seek to teach the principles that are
so fulfilling and so central to their lives and faiths, and to their own deep
aspirations to continue the family structure they have long revered. The
same is true of those who oppose same-sex marriage for other reasons.
In turn, those who believe allowing same-sex marriage is proper or
indeed essential, whether as a matter of religious conviction or secular
belief, may engage those who disagree with their view in an open and
searching debate. The Constitution, however, does not permit the State
to bar same-sex couples from marriage on the same terms as accorded
to couples of the opposite sex.
Id. at 2607.
South Dakota suggests that Obergefell moots this case. But the Supreme Court
specifically stated that “the State laws challenged by Petitioners in these cases are
now held invalid.” Id. at 2605 (emphasis added). Cf. United States v. Nat’l Treasury
Emps. Union, 513 U.S. 454, 477-78 (1995) (limiting relief to the parties before the
Court and noting “we neither want nor need to provide relief to nonparties when a
narrower remedy will fully protect the litigants”). The Court invalidated laws in
Michigan, Kentucky, Ohio, and Tennessee—not South Dakota. See Campaign for
S. Equal. v. Bryant, 2015 WL 4032186, at *2 (5th Cir. July 1, 2015) (ordering district
court to enter final judgment that Texas laws denying same-sex couples the right to
marry are unconstitutional); Conde-Vidal v. Rius-Armendariz, No. 14-2184 (1st Cir.
July 8, 2015) (judgment vacating and remanding district court judgment that
dismissed challenge to law denying same-sex marriage). And the Court did not
determine all issues raised by Plaintiffs here (for example, name-changes on driver’s
licenses). South Dakota has not repealed the challenged laws.
South Dakota’s assurances of compliance with Obergefell do not moot the
case. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 190 (2000) (“[A] defendant claiming that its voluntary compliance moots a case
bears the formidable burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.”). These assurances
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may, however, impact the necessity of continued injunctive relief. The district court
is better positioned to consider the issue on appropriate motion. See United States v.
Bailey, 571 F.3d 791, 804 (8th Cir. 2009) (noting this court reviews permanent
injunctions for abuse of discretion, reversing when the injunction is based on “a legal
error or a clearly erroneous finding of fact”). This court leaves to the court’s
discretion whether to vacate the stay of the injunction.
The judgment is affirmed. All pending motions are denied.
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