The Washington PostDemocracy Dies in Darkness

Meet the guy who may take the last unchallenged gay marriage bans to court

A group holds up a pride banner in celebration of Tuesday’s ruling striking down Pennsylvania’s same-sex marriage ban. (Michael Henninger/Pittsburgh Post-Gazette via AP)

A few weeks ago, Joshua Newville got the kind of request he’s been hoping for.

A woman who serves on the board of the Black Hills Center for Equality, a gay rights organization in South Dakota, wanted to sue the state over its same-sex marriage ban, Newville’s law school friend David Patton told him. Would he represent her?

“David knew that I was very much interested in marriage litigation and the issue of marriage equality,” says Newville, an anti-discrimination lawyer with Madia law in Minneapolis. “So he called me and asked if I was interested and I said absolutely.”

Newville filed that South Dakota suit, now on behalf of a half-dozen couples, on Thursday afternoon. A handful of couples from North Dakota have also reached out to him about doing the same there. He’s not been retained and is careful to note that he has not committed to taking up that case, but if he does Newville will have led the charge against the last two remaining state same-sex marriage bans not in court. 

That prospect — of every state with a same-sex marriage ban being sued over it — is a reflection of a recent and dramatic shift in the battle over same-sex marriage rights.

Just 18 years ago, the Defense of Marriage Act was enacted, limiting the federal definition of marriage to opposite-sex couples. Two years later, in 1998, residents of Alaska and Hawaii voted to amend their state constitutions to prevent same-sex marriages as well. Now, 29 state constitutions limit marriage to between a man and a woman while another six impose limits through laws, according to the National Conference of State Legislatures

But a lot has changed since DOMA was enacted in 1996. Just 27 percent of respondents to Gallup and Pew polls that year supported same-sex marriage. Today, support has doubled. Pew now reports support of 54 percent while Gallup reports 55 percent support.

And the movement to overturn the bans has also enjoyed a substantial string of legal victories in recent months. On Tuesday, same-sex marriage was introduced to the last holdout in the Northeast. Pennsylvania that day became the 10th state whose ban was ruled unconstitutional by a federal judge since a pivotal Supreme Court ruling against DOMA last summer. Federal judges ruled that another three states must recognize at least some out-of-state marriages. Of those 13 bans challenged in federal courts since that Supreme Court ruling — United States v. Windsor — none has survived unscathed. 

That summer DOMA decision also spurred Nancy Robrahn and Jennie Rosenkranz, the women who reached out to Newville through his friend. The two wondered what the ruling would mean for their own state’s ban, passed in 2006 by a 52 percent to 48 percent vote. (Two years earlier, North Dakota’s voters approved a ban in a 73 percent to 27 percent vote.) Then, in February, the Obama administration said it would no longer defend federal laws banning recognition of same-sex marriages.

“When that happened, I looked at Jen and I said will you marry me,” Robrahn said. On April 26, after 27 years together, the two said “I do.”

“I thought I would go to my grave never hearing that,” Robrahn says. The wedding took place in Minneapolis and was officiated by Mayor Betsy Hodges. The two changed their last names to Rosenbrahn because, Nancy said, there wasn’t enough space on the form for a hyphenated name.

Nancy says she and Jennie were motivated to act because they felt their state should be part of the national movement to legalize same-sex marriage and they felt better protected than others to be a part of it. South Dakota is among the 29 states that lack an explicit ban on discrimination based on sexual orientation, according to the Human Rights Campaign. But because the pair own their own home and mobile-home business, they didn’t have to worry about retaliation from an employer or landlord.

North Dakota similarly lacks protections from discrimination, a reality Newville is making clear to any couple that expresses interest in taking on that state’s ban. That lack of protection from discrimination represents the next battle in the fight for gay rights, Rosenbrahn says: “Marriage was the start, but it’s not the end.”