A federal judge ruled Monday that South Dakota’s voter-passed ban on same-sex marriage violated the U.S. Constitution, setting up a showdown in one of the few courts of appeals that has yet to rule on the constitutionality of marriage bans.

U.S. District Court Judge Karen Schreier ruled in favor of six couples who sued over the state ban last year. One couple sought the right to marry, while five wanted to force South Dakota to recognize their marriages, which took place in other states.

Schreier said [pdf] that the ban violated the 14th Amendment by depriving couples of the right to marry “solely because they are same-sex couples and without sufficient justification.”

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Schreier stayed her own ruling, pending an appeal by state Attorney General Marty Jackley (R), who has said he’s obligated to defend the state law.

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Jackley will appeal to the Eighth Circuit Court of Appeals, one of just four circuits that have not weighed in on same-sex marriage. The Eighth Circuit has pending cases out of Arkansas and Missouri, where federal judges have struck down same-sex marriage bans, while lawsuits challenging other marriage bans are pending in lower courts in Nebraska and North Dakota.

The Eighth Circuit last made its position known in 2006, when it upheld Nebraska’s ban on marriage.

The First, Fifth and 11th Circuits are the only others not to have ruled on lower court decisions on same-sex marriage. Only one circuit, the Sixth, has ruled in favor of a same-sex marriage ban.

Legislators in South Dakota first passed a ban on same-sex marriage in 1996. Voters placed that ban in the state Constitution in 2006.

If Schreier’s decision is upheld, along with lower court rulings in Arkansas and Missouri, it would bring the number of states that allow same-sex marriage to 39. The District of Columbia also allows gay marriage.

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