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Attorney for couples asks South Dakota judge to allow gay marriages while appeal advances

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SIOUX FALLS, South Dakota — A lawyer representing six South Dakota couples challenging the state's ban on gay marriage has asked a judge who declared it unconstitutional to let her ruling take effect immediately and allow same-sex weddings in the state.

U.S. District Judge Karen Schreier declared the ban unconstitutional last month but also put legal same-sex marriages on hold. Minneapolis attorney Josh Newville filed a motion Tuesday to set aside that stay on grounds it doesn't take into consideration other cases in which the U.S. Supreme Court allowed states to issue marriage licenses to same-sex couples while those cases were appealed.

The South Dakotans involved have waited long enough and should not have to wait for the judicial process, Newville said.

"Since October, the Supreme Court has consistently and repeatedly declined to enter a stay on judgment while the appeals process unwinds," he said in a telephone interview. "It is fundamentally unfair and logically inconsistent to deny South Dakotans the freedom to marry while, meanwhile, marriage equality is a real thing in Alabama and Florida."

The 8th U.S. Circuit Court of Appeals has granted a request to consider appeals from South Dakota, Arkansas and Missouri that positions itself to weigh in before an expected U.S. Supreme Court ruling that could settle whether same-sex couples can marry nationwide. The 8th Circuit hearing is scheduled for week of May 11 in Omaha, Nebraska.

"The determination of whether the citizens of a state define marriage is presently before the 8th Circuit federal court and U.S. Supreme Court. Plaintiffs may want to reconsider relying on what is developing in Alabama to support their position," South Dakota Attorney General Marty Jackley said of Newville's request.

A federal judge struck down Alabama's ban on gay marriage, but probate judges are having to decide whether to oblige and issue licenses or follow an order from Alabama Chief Justice Roy Moore telling them not to allow the unions.

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