Mpls attorney Josh Newville leading fight for marriage equality in South Dakota

Newville: "We feel the time is right, and this is important, so we filed."
Newville: "We feel the time is right, and this is important, so we filed."

Just two years removed from graduating from the University of Minnesota law school, Josh Newville is making international headlines.

Yesterday, Newville filed suit in Sioux Falls district court on behalf of six same-sex couples challenging a South Dakota constitutional amendment banning gay marriage approved by voters in 2006. It argues the ban violates the couples' constitutional rights to equal protection, due process, and right to travel.

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"The state will incur little to no burden in allowing same-sex couples to marry and in recognizing the lawful marriages of same-sex couples from other jurisdictions on the same terms as different-sex couples, while the hardship to plaintiffs of being denied due process, equal protection, and privileges or immunities is severe, subjecting them to an irreparable denial of their constitutional rights," the lawsuit says.

Reached for comment in Minneapolis today, Newville says he got involved in the case thanks to an old law school buddy who was working in the Black Hills area of South Dakota.

"Constitutional litigation is an area I'm extremely interested in, gay rights and discrimination," Newville tells us. "I grew up in a rural area in Wisconsin and wanted that to be changed, so when I was asked if I was interested [in the South Dakota case], I said, 'Absolutely.'"

But the case isn't the slam dunk it might seem to be amid the same-sex marriage wave sweeping the country in recent years. According to Newville, the United States Court of Appeals for the Eighth District, which has jurisdiction in South Dakota, "is the only court that has a bad precedent on this issue."

"In 2006 there was a challenge to Nebraska's [same-sex marriage] ban and during oral arguments one of the judges compared same-sex marriage to marrying your dog," Newville says. "As you can imagine the opinion that came down ended up being hostile." (Read about that case here.)

But the U.S. Supreme Court's 2013 ruling in United States vs. Windsor, which held that restricting the federal interpretation of "marriage" and "spouse" to apply only to heterosexual unions is unconstitutional, gave Newville confidence South Dakota's same-sex marriage ban could be defeated.

"Once Windsor came down, the opinion was clear about the animus and harm that comes from these kind of bans," Newville says. "Having the additional benefit of the Windsor opinion is I think why you're seeing all these [bans] fall in rapid succession throughout the country. It's not a political issue anymore -- the courts are coming around and realizing that this is a constitutional violation."

So despite the bad precedent in the appeals court, Newville decided to represent the South Dakota couples after all.

"I thought to myself, this lawsuit is coming, and if I don't represent them, they're going to find someone who will," he says.

Newville says his case is substantially different than the one brought against Nebraska's same-sex marriage ban back in 2006.

(For more, click to page two.)

"The challenge in '06 was specific to Nebraska's ban on same-sex marriage -- it wouldn't allow same-sex couples to marry within Nebraska," he says. "But the real thrust of my case isn't on that aspect. I've got six couples, but only one couple is unmarried within South Dakota and wants to be married. The bulk of the case is about the failure to recognize marriages performed in other jurisdictions -- three of the couples were married in Minneapolis [one by Mayor Betsy Hodges]."

South Dakota's refusal to recognize the marriages of same-sex couples married elsewhere means the state "not only discriminates against same-sex couples but also against out-of-state residents," Newville says.

Specifics of the South Dakota case aside, Newville says, "I can't tell you how fortunate I feel to be a part of this, considering this is the issue that drove me to law school in the first place."

"The support structure within the litigation community and within the gay rights advocacy community is so incredible," he continues. "I'm really happy and proud to be representing these people."

-- Follow Aaron Rupar on Twitter at @atrupar. Got a tip? Drop him a line at [email protected]

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