HR Management & Compliance

South Dakota same-sex marriage ban ruled unconstitutional

by Jane Pfeifle

On Monday, a federal judge in Sioux Falls ruled that South Dakota’s constitutional and statutory prohibition on same-sex marriage violated the U.S. Constitution. Six same-sex couples filed a lawsuit against the governor, the attorney general, the secretary of the South Dakota Department of Health, and other public officials seeking to overturn the ban on gay marriage.

Judge Karen Schreier found that marriage is a fundamental right and that the law violated equal protection and due-process rights without sufficient justification. She postponed enforcement of her decision, however, to allow state officials to appeal to the U.S. 8th Circuit Court of Appeals, the federal appellate court that hears appeals from South Dakota.

Schreier noted that the 8th Circuit has not yet ruled on the issue. She ruled that the public has an interest in the uniformity and stability of the rules surrounding marriage, so same-sex marriages will not be allowed yet.

If the 8th Circuit upholds Schreier’s ruling, South Dakota employers will need to examine their policies to make sure they don’t discriminate against same-sex couples. Employers also will need to remember the provision in the South Dakota Human Rights Act’s regulations that prohibits discrimination based on marital status. Thus, no adverse action should be taken against employees because of their marital status.

If the ruling stands, employer-sponsored benefits for married couples will need to be extended to same-sex couples. Employers will need to treat same-sex spouses the same way they treat opposite-sex spouses. Schreier’s decision will have ramifications on employer-sponsored retirement plans and health plans with spousal coverage.

Also, employee leave policies will be affected. For example, the guarantees provided by the Family and Medical Leave Act for a spouse’s serious health condition will be available to same-sex couples. Similarly, other leave and benefit policies related to spouses and families (e.g., bereavement leave) will need to be administered consistently for opposite-sex and same-sex couples.

Jane Pfeifle  Jane Pfeifle is the editor of South Dakota Employment Law Letter and a shareholder in the Rapid City office of Lynn, Jackson, Shultz & Lebrun, P.C. She can be reached at