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Gay Marriage Day: 8th Cir Tosses Remaining Same-Sex Marriage Bans

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By Casey C. Sullivan, Esq. on August 14, 2015 6:57 AM

It was Gay Marriage Day in the Eighth Circuit last Tuesday. No, there wasn't any extra same-sex nuptials, parades, or celebrations. Rather, the circuit court took Tuesday to formally strike down the same-sex marriage bans, following the Supreme Court's ruling nine weeks ago.

As a result of this decision, the same-sex marriage bans in South Dakota, Arkansas, and Nebraska are just about finito. Of course, that doesn't mean the controversial issue is entirely settled. Some county clerks in nearby states are refusing to issue marriage licenses to same-sex couples, while gay rights advocates are now moving to challenge other discriminatory laws and practices.

Bye-Bye Marriage Bans

The Supreme Court ruled in Obergefell that gay marriage bans are unconstitutional. In a 5-4 opinion this June, the High Court recognized same-sex couples' fundamental right to marriage and ruled that stay laws preventing such marriages violate the Constitution's guarantee of due process and equal protection. Since then, courts have been slowly implementing the ruling, invalidating states' (and territory's!) remaining bans.

It took a little over two months for the Eighth Circuit to get around to tossing the same-sex marriage bans in its jurisdiction, but the court did so in one fell swoop. An Eighth Circuit panel affirmed Arkansas and South Dakota district courts' earlier rulings that the states' marriage bans were unconstitutional. For Nebraska, it upheld an existing preliminary injunction and instructed the court to formally toss the law. Once the lower courts act, the state bans will be gone once and for all.

Some Controversy Remains

The transition to same-sex marriage has been fairly smooth in the Eighth Circuit. If there was any legal disagreement following the Supreme Court's ruling, it was minor. For example, the states had attempted to dismiss the challenge to their laws as moot since they were sure to comply with the Supreme Court ruling. The Eighth Circuit rejected those arguments and advocates condemned the states' action as needlessly delaying compliance with the law.

Elsewhere, however, controversies have been stronger. Today, a clerk's office in Eighth-adjacent Kentucky has defied a court order to issue same-sex marriage licenses. A clerk in Texas similarly refused last June, but backed down when faced with legal action.

Gay rights advocates, for their part, are moving on to other issues. Some legal groups are challenging the remaining bans on same-sex adoption while others are beginning to focus on greater anti-discrimination and employment protections for LGBT workers.

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