- Associated Press - Wednesday, May 21, 2014

South Dakota is now one of only two states where a constitutional ban on same-sex marriage hasn’t been challenged in court, but that’s likely to change in the near future.

Since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year, 28 states have been in legal battles over gay marriage bans. Montana became the 29th state to see a challenge Wednesday, as four couples announced they are suing the state over its constitutional ban.

Only North Dakota and South Dakota do not have lawsuits challenging their same-sex marriage ban.

Attorney Joshua Newville said this week that he plans to file a lawsuit soon on behalf of Nancy and Jennie Rosenbrahn, of Rapid City, who were married in late April in Minneapolis. The suit will challenge South Dakota’s constitutional ban on same-sex marriage in addition to a provision in federal law that allows states to not recognize same-sex marriages performed elsewhere.

Newville said he’s “very seriously contemplating filing in North Dakota” as well, but that his focus right now is on the forthcoming South Dakota suit. He also said that Attorney General Marty Jackley shouldn’t waste time and money defending the ban.

But Jackley has said he doesn’t have a choice.

“It is the statutory responsibility of the attorney general to defend both our state constitution and statutory laws, which I intend to do if a lawsuit is filed,” he said last month. “If there is going to be a change in the definition of marriage, I believe it should again come from a vote of South Dakotans on the ballot and not through the court system.”

Same-sex marriage advocates in both North Dakota and South Dakota said the fact that sexual orientation and gender identity are not protected classes for matters such as housing and employment has discouraged couples from coming forward.

Nancy Rosenbrahn said it doesn’t matter anymore that South Dakota’s ban will be one of the last to be challenged. She feels it’s more important that the challenges are becoming widespread, sending a message to lawmakers across the country - and that a suit in North Dakota would only help the cause.

“We’re just waiting for them to step forward so that we can say all of the states have something going,” Rosenbrahn said. “How can you ignore that? How can you not side with the will of the people?”

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