Attorney General Jackley’s Response to ACLU on Same-Sex Marriage


Attorney General Jackley’s Response to ACLU on Same-Sex Marriage

PIERRE – “It is disappointing to learn that the ACLU, who in their own words, works to “defend and preserve the Constitution’s promise of liberty for everyone in our country”, is now choosing to place certain Constitutional Rights ahead of others.

As South Dakota’s Attorney General, I do not have the luxury of ignoring the long-established law requiring Constitutional Rights to coexist or overlooking federal requirements calling for reasonable accommodations to protect the Constitutional Rights of all individuals.

As Attorney General, it is not my intent to ignore established law and sue a county or arrest a county employee for exercising the well-established Constitution Right to the Freedom of Religion given that same-sex couples have been and are receiving marriage licenses in South Dakota. Rather than accepting the ACLU’s position, I support commonsense solutions protecting everyone’s Constitutional Rights in South Dakota which ensure same-sex couples continue receiving marriage licenses as now required by law,” said Attorney General Jackley.


Meade County Commissioner under attack for expressing his views

According to the Rapid City Journal, Meade County commissioner Alan Aker is under a bit of attack by those who dwell on-line after expressing that the recent Supreme Court ruling would cause states to get out of the marriage business. (State Legislators have also noted they were going to bring bills to that effect in SD).

Meade County Commissioner Alan Aker has faced an outpouring of anger and criticism, including a petition to remove him from office, after he used his county Facebook account to predict dire consequences from the U.S. Supreme Court’s recent ruling allowing gay marriage.

The court’s 5-4 decision was announced on Friday, June 26; later that morning, Aker’s Facebook post included his prediction that states will begin to eliminate civil marriage.

“You haven’t gained marriage ‘equality,'” he wrote, “I predict you have ended marriage as a civil institution. One by one, states will remove it from statutes. It will be an exclusively religious institution.”


Reader comments on the post include criticism that Aker misused a public official page, acted unprofessionally and put his own views above those of his constituents.

Aker has this disclaimer on his Meade County Facebook page: “This page written and paid for by Alan Aker, not Meade County. Commissioner Alan Aker does not speak for the Meade County Commission or other Meade County officials.”

Read it here.

Since this, on-line petitions have come out, demanding that he be removed from office.

I’m not sure how he’s “misused a public official page” that he put up and maintains himself. I think that tends to show the ignorance of the people signing up for the lynch mob.

The thing that’s troubling is that the protest illustrates a ratcheting up of the rhetoric, and seems to imply that Aker is somehow mystically barred from having and expressing opinions contrary to those who support the ruling.  The 14th Amendment may have trumped the first amendment in that instance, but that’s not to say that future rulings are going to go that way when the first wave of “religious protection acts” start hitting the court.

I’d say a little peace and empathy on both sides might go a long way while we sort this out as a nation, but that might be asking a bit much.

Legislators preview the 2016 Legislative session’s upcoming bills relating to marriage.

From the Sioux Falls Argus Leader, it sounds as if there’s a pile of measures coming with regards to how the state interacts with private individuals in the arena of marriage.

County officials apparently count on taxing marriage as revenue, but that’s not going to stop proposals to just take the state out of it:

A Sioux Falls lawmaker who introduced legislation that would have ended state licensing of marriages says he will likely make another run at the issue next year.


Instead of licensing, married couples would submit a certificate of marriage to their county register of deeds. The certificates would come from churches or those who officiated weddings.


County officials originally opposed Haugaard’s bill, in part because they didn’t want to lose revenue.


But an effort to end state licensing of marriages won’t be embraced by all groups that support traditional marriage. Dale Bartscher, the executive director of the Family Heritage Alliance, said he appreciated Haugaard’s thinking on the issue, but ultimately he said his group couldn’t support the bill.

Read it all here.

What do you think? With the recognition of same-sex marriage, is it time for the state to just get out the marriage license business, and let counties serve as a filing agency?

And as noted by Representative Scott Craig in the article, does there need to be “protection provided to government employees – judges and clerks who declined to perform marriages or issue licenses based on First Amendment objections?”

We probably need to look at whether there is an easy way (or any way) to balance our First Amendment rights to freedom of religion against the 14th Amendment rights of equal protection of the law, on which the same-sex marriage rights are based.  (Given the Supreme court’s position, we probably can’t get into a discussion on state’s rights anymore.)

Or is seeking both a fair and equitable balance between religion and rights just wishful thinking that’s never going to happen?

Attorney General’s Guidance on Same-Sex Marriage Decision

Attorney General’s Guidance on Same-Sex Marriage Decision

PIERRE – The United States Supreme Court has ordered that every State must recognize and license same-sex marriage. The Supreme Court order should be treated as effective immediately absent further direction from the Courts, with the practical recognition that a reasonable period of time may be necessary for state and local officials to implement this new rule of law.


Jackley: Divided United States Supreme Court Holds State Marriage Laws Prohibiting Same-sex Marriage Unconstitutional

jackleyheader2Divided United States Supreme Court Holds State Marriage Laws Prohibiting Same-sex Marriage Unconstitutional

PIERRE, S.D. – Attorney General Marty Jackley announced today that a very divided United States Supreme Court has issued its decision in Obergefell, et al. v. Hodges, et al., holding that the Fourteenth Amendment requires states to issue marriage licenses between two people of the same-sex. The Court additionally held that states are required to recognize lawfully licensed out-of-state marriages between two people of the same sex.

“It has always been my position that the citizens of our state should define marriage, and not the federal government,” said Jackley. “Five members of the U.S. Supreme Court have now determined neither the States nor our citizens have the right or the ability to define marriage. 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 November 2006, South Dakota voters approved a Constitutional Amendment making marriage valid only between a man and a woman. South Dakota voters approved this amendment by a vote of 172,242 to 160,173. South Dakota Constitution Article XXI, Section 9 mandated that only marriage between a man and a woman shall be valid or recognized in South Dakota. In addition, SDCL 25-1-1 defines marriage as a personal relation between man and a woman. The U.S. Supreme Court has now held our Constitution and statutes violate U.S. Constitution.

South Dakota’s constitutional provision and laws prohibiting same-sex marriage were held unconstitutional by the United States District Court for the District of South Dakota in Rosenbrahn et al. v. Daugaard et al. in January 2015. That District Court stayed the enforcement of its judgment pending the appeal. The Eighth Circuit previously deferred its ruling pending the United States Supreme Court’s decision in Obergefell. The Rosenbrahn case is currently before the Eighth Circuit Court of Appeals.
Significantly, today’s Obergefell decision makes clear that the law of this Circuit was previously controlled by the Bruning decision, which upheld Nebraska’s Constitution and state statutes defining marriage as between one man and one woman. Accordingly, South Dakota has been acting under controlling case precedent.

SCOTUS: Approves same-sex marriage in all 50 states; Sets stage for next legislative fight over religious freedom.

From Newsmax:

The Supreme Court ruled 5-4 on Friday that state bans on same-sex marriage are unconstitutional, an historic decision that extends gay and lesbian nuptials nationwide.

The question before the justices in the case of Obergefell vs. Hodges was whether the 14th Amendment’s guarantee of equal protection and due process require a state to license a marriage between two people of the same sex.

The justices also were considering the question of whether a state is required to recognize a same-sex couple’s legal marriage performed out-of-state.

Read it all here.  And more from USA Today:

The justices ruled that states cannot deny gay men and lesbians the same marriage rights enjoyed for thousands of years by opposite-sex couples. Within days if not hours, the decision is expected to trigger same-sex marriages in states that still ban the practice.

The landmark ruling ends a legal battle that had brewed in the states for 45 years, from Minnesota in the 1970s to Hawaii in the 1990s and New England after the turn of the century. The final turning point came in 2013, when the high court forced the federal government to recognize same-sex marriages and allowed them to resume in California.

Had the court upheld gay marriage bans in Ohio, Michigan, Tennessee and Kentucky, it would have jeopardized federal court rulings striking down similar bans in 20 of the 37 states where same-sex marriage has been declared legal. Quickly, the number of gay marriage states could have been cut in half.

Instead, the court’s finding that same-sex couples have a right to marry under the Constitution will make gay marriage legal in the remaining 13 states, from Georgia to North Dakota. And it will make battles over religious-freedom and non-discrimination laws the next battleground in the nation’s continuing struggle with gay rights.


Throughout the battle, a patient legal strategy, savvy public relations campaign and superior financing and organization propelled the gay marriage movement past an outgunned and underfunded opposition.

Read it here.

What do you think this means for the residents of the State of South Dakota?