South Dakota Gay Marriage Ban to Face Lawsuit

A lesbian couple plans to exchange vows Saturday in Minnesota, then be the first South Dakota residents to legally challenge the state's ban on same-sex marriage and its refusal to recognize such nuptials.

Nancy Robrahn, 68, and Jennie Rosenkranz, 72, of Rapid City, have been together 27 years. Minneapolis lawyer Joshua Newville said Friday he took the case after the couple was unable to find an attorney in South Dakota.

The South Dakota Legislature passed a law in 1996 banning gay marriage. State voters reiterated the prohibition in 2006 with a constitutional amendment that says only a marriage between a man and a woman is valid. South Dakota, North Dakota, Montana and Alaska are the only states with a ban on same-sex marriage but no pending court cases challenging its constitutionality, according to Human Rights Campaign, a group advocating for gay rights.

Robrahn and Rosenkranz already were denied a South Dakota marriage license, which gives them standing to legally challenge the state ban, Newville said. After they're married in Minnesota, they plan to ask the Pennington County clerk in Rapid City for a legal name change and, most likely, be denied. That would allow them to file a lawsuit in federal court to challenge a U.S. provision allowing states not to recognize same-sex marriages performed elsewhere, he said.

Two other women from western South Dakota who were married in Connecticut and two men from the eastern part of the state who are getting married soon in Iowa also plan to join the lawsuit, Newville said.

"So Nancy and Jennie and the other couples have decided not only do we want to challenge the state's marriage ban but the state not recognizing marriages from other states," he said.

Newville said he's still weighing which federal courthouse in South Dakota to file the lawsuit. He challenged Attorney General Marty Jackley not to waste the time and money of defending the ban.

Jackley said he doesn't have a choice.

"It is the statutory responsibility of the attorney general to defend both our state constitution and statutory laws, which I intend to do if a lawsuit is filed," he said.

"If there is going to be a change in the definition of marriage, I believe it should again come from a vote of South Dakotans on the ballot and not through the court system."

Robrahn said she and Rosenkranz married men when they were younger and didn't consider getting married themselves until one of their grandchildren asked about it several years ago.

They discussed it more seriously when considering the federal protections that come with marriage, she said. When one of them dies, the inheritance can pass to the other without being taxed and Social Security benefits also go to the spouse, Robrahn said.

Beyond the personal benefits, being the first South Dakotans to challenge the ban builds momentum, she said.

South Dakota would be the 29th state with a marriage equality court case, Human Rights Campaign said.

"There are so many states that are challenging state laws that if this ever goes to the Supreme Court, if every state has some kind of lawsuit happening in it, the Supreme Court can't ignore it," Robrahn said.

Robrahn said she and Rosenkranz considered hyphenating their names but quickly determined it wouldn't fit on blank checks or a driver's license. So they combined the two and will be introduced Saturday as "Mrs. And Mrs. Rosenbrahn."

Minneapolis Mayor Betsy Hodges, who has already officiated one same-sex wedding since taking her post in January, said she enthusiastically accepted the invitation to marry the couple from a neighboring state. Hodges said she is fully aware the nuptials will be used to make a legal case.

"I fought very hard for marriage equality in Minnesota. Every state in our country should allow people to marry the person they love. That is equally true for South Dakota. If that makes that real in that state, I'm proud to be part of it," Hodges said.

After Minnesota passed its gay marriage law last May, then-Minneapolis Mayor R.T. Rybak embarked on a regional tour to tout his city as a destination for gay couples who wanted to wed but couldn't do so legally in their home state.