Texas Review of Law & Politics, Volume 20, Number 1, Fall 2015 Page: 58
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Texas Review of Law & Politics
Fourteenth Amendment's Due Process and Equal Protection
Clauses.222 The court noted, "Almost every court that has addressed
the issue. [of whether the right to same-sex marriage was a
fundamental right] since the Supreme Court's 2013 decision in
Windsor .has said the answer is yes."223 And the court further
observed that since Windsor, "19 different federal courts, now
including this one, have ruled on the constitutionality of state bans
on same-sex marriage. The result: 19 consecutive victories for those
challenging the bans."224 The case was appealed to the Eleventh
Circuit,225 but the Eleventh Circuit placed on hold any same-sex
marriage cases until after the Supreme Court ruled on the issue in
Obergefell v. Hodges.226
H. Rosenbrahn v. Daugaard
In January 2015, the United States District Court for the District
of South Dakota ruled in summary judgment that South Dakota's
same-sex marriage prohibitions violate the Constitution. The court
found that marriage is a fundamental right.227 And the court
further concluded that since South Dakota's laws banning same-sex
marriage were not shown to be narrowly tailored to serve a
compelling state interest, they violated the Due Process Clause and
the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution by impermissibly denying same-sex
couples their fundamental right to marry.228 The court also
observed, "The majority of courts that have addressed the issue of
the constitutionality of same-sex marriage bans after Windsor have
found that same-sex marriage bans deprive homosexual couples of
their fundamental constitutional right to marriage."229 In August
2015, after the Supreme Court's Obergefell decision, the Eighth
Circuit affirmed the district court's decision.230
222. Brenner v. Scott, 999 F. Supp. 2d 1278, 1281-82 (N.D. Fla. 2014), order clarified by,
No. 4:14CV107-RH/CAS, 2015 WL 44260 (N.D. Fla. 2015).
223. Brenner, 999 F. Supp. 2d at 1287.
224. Id. at 1281.
225. 11th Circuit Court, FREEDOM TO MARRY, http://bit.ly/1SAFQbC [perma.cc/RFH6-
3MZU] (last visited Dec. 27, 2015).
226. Lyle Denniston, Eleventh Circuit puts off same-sex marriage cases, SCOTUSBLOG (Feb.
5, 2015,7:31 AM), http://bit.ly/22LrQjZ [perma.cc/59HS-8BQL].
227. Rosenbrahn v. Daugaard, 61 F. Supp. 3d 862, 869 (D.S.D. 2015), aff'd, 799 F.3d 918
(8th Cir. 2015) (per curiam).
228. Rosenbrahn, 61 F. Supp. 3d at 875-76.
229. Id. at 870 (footnote omitted).
230. Rosenbrahn, 799 F.3d at 922 (per curiam).58
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University of Texas at Austin. School of Law. Texas Review of Law & Politics, Volume 20, Number 1, Fall 2015, periodical, September 2015; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth839390/m1/72/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.