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Attorney for South Dakota same-sex couples to challenge hold judge put on gay marriage ruling

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SIOUX FALLS, South Dakota — An attorney for couples trying to overturn South Dakota's ban on same-sex marriage says he plans to challenge the hold that a federal judge put on her ruling that the state's ban on such unions was unconstitutional.

Josh Newville said Tuesday from Minneapolis that he intends within the next month to contest the stay on the order issued Monday by U.S. District Judge Karen Schreier in favor of six same-sex couples who sued in May.

The lawsuit challenges a 1996 state law and a voter-approved 2006 constitutional amendment that bans gay marriage.

Attorney General Marty Jackley said the state will appeal the case to the 8th U.S. Circuit Court of Appeals, a conservative-leaning federal appeals court that in 2006 affirmed Nebraska's right to ban same-sex marriages. Jackley said Tuesday that the state has 30 days from when the judgment was entered to file an appeal.

While declaring that the "plaintiffs have a fundamental right to marry," Schreier also put her ruling on hold, noting that two other district courts have also stayed their decisions while their appeals are pending at the 8th U.S. Circuit. Those are Arkansas and Missouri.

"Because this case presents substantial and novel legal questions, and because there is a substantial public interest in uniformity and stability of the law, this court stays its judgment pending appeal," Schreier wrote.

Newville said he understands the desire for judges and the defendants to defer to a higher court, but said there has to be a balance as well. In recent months, he said, federal appellate courts and the U.S. Supreme Court have not "rubber stamped" requests from states to keep bans in place.

PHOTO: FILE - In this March 10, 2014 file photo, Jennie Rosenbrahn, left, and Nancy Rosenbrahn, two challengers of South Dakota's same-sex marriage ban, stand outside of the Pennington County Courthouse in Rapid City, S.D. A federal judge on Monday, Jan. 12, 2015 declared the state's same-sex marriage ban unconstitutional, but stayed the decision pending appeal. (AP Photo/Rapid City Journal, Benjamin Brayfield, File, File)
FILE - In this March 10, 2014 file photo, Jennie Rosenbrahn, left, and Nancy Rosenbrahn, two challengers of South Dakota's same-sex marriage ban, stand outside of the Pennington County Courthouse in Rapid City, S.D. A federal judge on Monday, Jan. 12, 2015 declared the state's same-sex marriage ban unconstitutional, but stayed the decision pending appeal. (AP Photo/Rapid City Journal, Benjamin Brayfield, File, File)

"And there's a possibility that (an appeal) could take a lot of time to unfold, and meanwhile real people's lives are being affected in a very real way," he said.

In an email Tuesday, Jackley said a ruling that reverses the decisions of almost a third of the state's citizens deserves a second opinion.

"A ruling on a novel legal question that overturns 172,242 South Dakotans' decision at the ballot box is substantial and deserving of review by a higher court, particularly in light of the inconsistent interpretations occurring across the country," he said.

Following his annual State of the State speech Tuesday, Gov. Dennis Daugaard, who opposes legalizing same-sex marriage, said the costs associated with defending the state's marriage ban are reasonable.

"I don't think (the cost of the litigation is) significant given the importance of the issue," he said.

The Supreme Court again is considering whether to hear a gay marriage case, and another factor has raised the likelihood the justices will do so. In November, the federal court of appeals based in Cincinnati became the first, and so far only, appellate court to uphold state bans on same-sex marriage. Plaintiffs from Kentucky, Michigan, Ohio and Tennessee are asking to court to reverse that decision.

Newville said he plans to challenge the hold on Schreier's ruling regardless of whether the high court takes up the issue, since any Supreme Court decision still wouldn't come until June.

"If these are fundamental rights, why can't we give them those rights?" he said.

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PHOTO: FILE - In this Oct. 17, 2014 file photo, same-sex marriage supporters rally outside the Federal Building and U.S. Courthouse in Sioux Falls, S.D. A federal judge on Monday, Jan. 12, 2015 declared South Dakota's same-sex marriage ban unconstitutional, but stayed the decision pending appeal. (AP Photo/The Argus Leader, Jay Pickthorn, File)  NO SALES
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