UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION




Rosenbrahn, et al.,

Plaintiffs,

vs.

Daugaard, et al.,

Defendants.

Court File No. 14–CV–4081–KES
Case Type: Civil Rights / § 1983


PLAINTIFFS’ STATEMENT OF
UNDISPUTED MATERIAL
FACTS SUPPORTING
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT


I. SOUTH DAKOTA’S MARRIAGE BANS
1. In 1996, legislators introduced House Bill 1143, which amended the definition
of marriage under state law, adding the limitation that marriage be only “between a man
and a woman.” H.B. 1143, 1996 Leg., 71
st
Sess. (S.D. 1996).
2. House Bill 1143 was passed by both houses of the South Dakota legislature
and signed into law by the governor. See S.D. Codified Laws § 25-1-1 (noting 1996
amendment).
3. This change was motivated, at least in part, by the prospect of legal marriage
for same-sex couples in Hawaii following the Supreme Court of Hawaii’s decision in
Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). See Pl. Ex. 1 (stating that the legislation was
necessary because of “events in Hawaii.”).
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4. In 2006, “Amendment C,” a measure that would add to the South Dakota
Constitution a provision prohibiting same-sex couples from marrying, was approved by
both houses of the South Dakota legislature and placed on the 2006 general election
ballot. See Pl. Ex. 2 (2006 Ballot Question Pamphlet).
5. The documentation that accompanied the 2006 ballot included the statement
that “marriage is a union between one man and one woman and that the State of South
Dakota should not recognize any other kind of ‘marriage.’” Pl. Ex. 2.
6. In 2006, the proposed amendment was approved by 52% of South Dakota
voters and was adopted. S.D. SEC. OF STATE, Ballot Question Titles and Election Returns
1890-2010, at 20.
1

7. Amendment C did not just ban marriage for same-sex couples, it also
prohibited the Legislature from allowing civil unions, domestic partnerships, or any other
kind of legal relationship between same-sex couples.
8. In 2000, legislators introduced House Bill 1163, which amended existing state
law providing that any marriage contracted outside South Dakota which is valid under the
law of the jurisdiction in which it was contracted is valid in South Dakota. House Bill
1163 added the limitation that all such out-of-state marriages will be recognized “except
a marriage contracted between two persons of the same gender.” H.B. 1163, 2000 Leg.,
75
th
Sess. (S.D. 2000).

1
Available at https://sdsos.gov/elections-voting/assets/BallotQuestions1890-2010.pdf (last visited July 2,
2014)
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9. House Bill 1163 was passed by both houses of the South Dakota legislature
and signed into law by the governor. See S.D. Codified Laws § 25-1-38 (noting 2000
amendment).
10. House Bills 1143 and 1163 and Amendment C prohibit same-sex couples in
South Dakota from enjoying the rights, protections, and benefits available to married
couples.
II. THE PLAINTIFFS
A. Jennie and Nancy Rosenbrahn
11. Plaintiffs Jennie and Nancy Rosenbrahn are residents of Rapid City, South
Dakota. Jennie, 72, and Nancy, 68, have lived in Rapid City since 1973. Together, they
own and manage a mobile home park in Rapid City and provide a home for rescued dogs.
Pl. Ex. 3 (Decl. of J. Rosenbrahn), at ¶ 2; Pl. Ex. 4 (Decl. of N. Rosenbrahn), at ¶ 2.
12. Jennie and Nancy have been in a committed relationship for nearly thirty
years. They met through a mutual friend in 1983 and, shortly thereafter, began a four-
year courtship. Even though they were unable to get married at that time, they exchanged
rings as a symbol of their love and commitment to one another. Jennie and Nancy entered
into a legal marriage in Minneapolis, Minnesota on April 26, 2014. Pl. Ex. 3, at ¶ 7; Pl.
Ex. 4, at ¶ 7.
13. Jennie and Nancy have raised four children from their prior marriages and
now have six grandchildren. The obstacles they have faced raising their family has
provided daily reminders of the indignity they experience because their relationship and
marriage are not recognized in South Dakota. For example, recently one of their
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grandsons, then nine years old, asked why Jennie and Nancy were not married like his
parents. It was painful for Jennie and Nancy to see how hurt and confused their grandson
was by South Dakota’s decision to treat them differently than opposite-sex couples. As
his grandmothers, it hurt Jennie and Nancy to know that they could not provide their
grandchildren with that piece of mind simply because they are a same-sex couple. Pl. Ex.
3, at ¶ 8; Pl. Ex. 4, at ¶ 8.
14. Recently, as Jennie and Nancy started their end-of-life planning, they faced
another difficult reminder of the effect that South Dakota’s refusal to accept their
marriage has on their lives. For example, even though they manage their mobile home
park together, in the event that Jennie dies, Nancy will have no legal right to that property
as a result of their marriage. Despite their best efforts, any legal documents Jennie and
Nancy execute would only approximate—but never equal—the protections afforded
opposite-sex married couples in South Dakota. Id.
15. Jennie and Nancy are very involved in their community and local
organizations. Jennie is a certified HIV tester at the Black Hills Center for Equality’s
office, the prison on the Pine Ridge Reservations, and local community events. Nancy
sits on the boards of the Black Hills Center for Equality and Black Hills Equality
Coalition. Additionally, Jennie and Nancy work together for a dog rescue in Gregory,
South Dakota. Over the past four years, the couple has fostered more than fifty dogs,
preparing them to be adopted into loving homes. Pl. Ex. 3, at ¶ 9; Pl. Ex. 4, at ¶ 9.
16. Although both Jennie and Nancy both moved to South Dakota as adults, they
both lived here for over forty years and consider it their home. Therefore, when they got
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engaged after the Supreme Court’s decision in United States v. Windsor, they hoped to
get married in South Dakota, where the couple could celebrate with their friends and
family. On March 10, 2014, Jennie and Nancy applied for a marriage license at the
Pennington County Register of Deeds in Rapid City. The couple met all the legal
requirements for marriage in South Dakota, but were denied the marriage license because
they are a same-sex couple. The experience of being denied a license was humiliating; it
made the couple feel like “second class citizen[s] of this State.” Pl. Ex. 3, at ¶¶ 2, 10; Pl.
Ex. 4, at ¶¶ 2, 10.
17. In recognition of Jennie and Nancy’s marriage, the couple decided to change
their last names to Rosenbrahn, a combination of their individual last names. Jennie and
Nancy’s new married names are listed on their marriage license, which the couple
understood to be a valid and legal means of completing a name change. But when Jennie
and Nancy returned to South Dakota, the state refused to recognize their marriage. As a
result, on May 8, 2014, when Jennie and Nancy went to obtain updated driver’s licenses
that reflected their new last name, they were denied the updated licenses and instead were
handed a form that stated that marriage certificates for same-sex couples would not be
accepted to support a change of name on a South Dakota driver’s license. Pl. Ex. 5. For
Jennie and Nancy, the experience was just as humiliating as it had been to be denied a
marriage license by their home state. Pl. Ex. 3, at ¶ 12; Pl. Ex. 4, at ¶ 12.
18. For Jennie and Nancy, having their marriage recognized by their South Dakota
would lift a tremendous social and legal burden. In addition to the very significant social
benefits, the couple would no longer have to spend additional time, money and energy to
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cobble together the protections that married opposite-sex couples are simply granted by
virtue of their marriage. Pl. Ex. 3, at ¶¶ 13; Pl. Ex. 4, at ¶ 13.
B. Jeremy Coller and Clay Schweitzer
19. Plaintiffs Jeremy Coller and Clay Schweitzer are residents of Rapid City,
South Dakota. Jeremy, 33, is an emergency nurse and Clay, 27, is a nursing director. Pl.
Ex. 6 (Decl. of J. Coller), at ¶ 2; Pl. Ex. 7 (Decl. of C. Schweitzer), at ¶2. Jeremy and
Clay are natives of South Dakota; Clay was born in Aberdeen and Jeremy was born in
Rapid City and they were both raised here. Pl. Ex. 6, at ¶ 3; Pl. Ex. 7, at ¶ 3. After leaving
South Dakota to attend college, Jeremy returned to South Dakota in 2009 to help care for
his stepfather, who had been diagnosed with cancer. Pl. Ex. 6, at ¶¶ 5–6. Clay was
inspired by watching his mother care for others to obtain a nursing degree and to go into
nursing. Pl. Ex. 7, at ¶¶ 5–6.
20. A mutual friend introduced Jeremy and Clay, and the two have been in a
loving, committed relationship since 2011. The two share many hobbies and interests
such as camping, gardening, and playing with their dogs and cats. They fell in love soon
after meeting one another and have been building their lives together since then. Pl. Ex.
6, at ¶ 7; Pl. Ex. 7, at ¶ 7.
21. Based in part on their shared love of the Black Hills, Clay surprised Jeremy by
proposing against the backdrop of the Black Hills at the Back Hills Playhouse in Custer
State Park. As stated in his attached affidavit, Jeremy describes the proposal as,
“beautiful, and was even more special to be surrounded by friends and family who
witnessed this important event in our lives.” Pl. Ex. 6, at ¶ 8; Pl. Ex. 7, at ¶ 8.
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22. Both Jeremy and Clay were born and raised in South Dakota. Thus, when they
became engaged they were hoping to get married in their native South Dakota, where
they could once again be surrounded by family and friends to celebrate. On April 23,
2014, Jeremy and Clay applied for a marriage license at the Pennington County Register
of Deeds in Rapid City. The couple met all the legal requirements for marriage in South
Dakota, but were denied the marriage license because they are a same-sex couple. The
experience of being denied a license was humiliating for Jeremy and Clay. Pl. Ex. 6, at
¶ 10; Pl. Ex. 7 at ¶ 10.
23. Jeremy and Clay would have preferred to get married in South Dakota. But
enjoying the rights and responsibilities associated with marriage was so important to
Jeremy and Clay that they did not want to wait until South Dakota allows same-sex
couples to marry. The couple got married on May 14, 2014, in Sioux City, Iowa in the
company of a few close friends and family. Although Jeremy and Clay are already legally
married, they will return to the Black Hills in September 2014 to host a ceremony and
reception so they can celebrate with all of their family and friends. Pl. Ex. 6, at ¶ 11; Pl.
Ex. 7, at ¶ 11.
24. As a young couple, it is important to Jeremy and Clay to have their marriage
recognized by South Dakota. The two plan on raising a family in South Dakota and want
to ensure sure that their family has the legal protections that provide the families of
opposite-sex couples with security and stability. For example, Jeremy and Clay’s home is
currently titled in Jeremy’s name. If Jeremy were to die, Clay would not be able to inherit
the home or Jeremy’s assets in the same way an opposite-sex married couple would.
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Beyond the legal protections, being recognized as married by South Dakota sends a
powerful message to their future children, their friends, and their friends’ parents that
their family is entitled to and deserves to be treated with the same dignity and respect as
any other family. Pl. Ex. 6, at ¶ 12; Pl. Ex. 7 at ¶ 12.
C. Lynn and Monica Serling-Swank
25. Plaintiffs Lynn and Monica Serling-Swank are residents of Brandon, South
Dakota. Lynn and Monica, both 50, have been in a committed relationship for over
twelve years. Lynn and Monica both work at Capitol One in Sioux Falls and enjoy being
able to see each other every day. Pl. Ex. 8 (Decl. of L. Serling-Swank), at ¶ 2; Pl. Ex. 9
(Decl. of M. Serling-Swank) at ¶ 2.
26. Lynn and Monica moved to South Dakota in 2007 so that they could be close
to Monica’s parents and help to run the family business. Pl. Ex. 8, at ¶ 3; Pl. Ex. 9, at ¶ 3.
27. After being together for four years, Lynn and Monica decided to marry
because of their love and commitment for one another, including their desire to spend the
rest of their lives together. Pl. Ex. 8, at ¶ 7; Pl. Ex. 9, at ¶ 7. Lynn and Monica entered
into a civil union on June 4, 2006, in front of over 100 family and friends in Bethel,
Connecticut. Pl. Ex. 8, at ¶ 10; Pl. Ex. 9, at ¶ 10. Connecticut legally converted their civil
union into a marriage on October 1, 2010. Id.
28. As a family, as life partners, as spouses, and as South Dakotans, Lynn and
Monica want their marriage and family to be legally recognized and protected, just as the
families of opposite-sex couples are. The couple wants to share in the benefits and
responsibilities of marriage. Like innumerable opposite-sex families, Lynn and Monica
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want their family to be legally recognized and protected by South Dakota law. For
instance, because their relationship is not legally recognized in South Dakota, Lynn was
denied access to see Monica while she was in the hospital. Further, Lynn and Monica
have had to spend a significant amount of money on legal documents that attempt to
mimic the rights and protections the couple would enjoy automatically if South Dakota
recognized their marriage. The couple has spent over $1,000 preparing legal documents
in order to ensure that their assets are protected in the event that one of them passes away.
But, even after expending the additional cost, effort, and stress to acquire these
documents, the couple does not benefit from the same safety, security, and stability for
their family that opposite-sex couples enjoy because South Dakota legally recognizes
their marriages. Pl. Ex. 8, at ¶ 11; Pl. Ex. 9 at ¶ 11.
29. As someone who has served the Navy to protect the American values of
freedom, liberty, and equality, Monica finds it particularly painful to have her citizenship
diminished by South Dakota’s refusal to legally recognize her relationship with the
woman she loves. Pl. Ex. 9, at ¶ 13.
D. Krystal Cosby and Kaitlynn Hoerner
30. Plaintiffs Krystal Cosby and Kaitlynn Hoerner are residents of Aberdeen,
South Dakota. In April 2014, Krystal and Kaitlynn welcomed a baby daughter into their
family. Krystal, 23, is a floor installer and Kaitlynn, 20, is a stay-at-home mother for the
couple’s infant daughter. Krystal and Kaitlynn have been in a committed relationship for
two years. Pl. Ex. 10 (Decl. of K. Cosby) at ¶ 2; Pl. Ex. 11 (Decl. of K. Hoerner), at ¶ 2.
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31. Krystal is a native of Arkansas. After joining the Army, Krystal enlisted into
the Army as a Private First Class. In 2011, while her company was preparing to deploy to
Iraq, Krystal was severely injured and was unable to deploy and is partially disabled.
Krystal completed her enlistment and was honorably discharged. She then moved to
South Dakota to be with her family and to help care for her disabled grandmother. Pl. Ex.
10, at ¶¶ 3, 5–6.
32. Kaitlynn is a native South Dakotan. Pl. Ex. 11, at ¶ 3. She met Krystal through
mutual friends in 2012, shortly after Krystal had moved to South Dakota. The two
quickly became closer and established a relationship, and now live in a loving, committed
relationship and have an infant daughter together. Pl. Ex. 10 at ¶¶ 2, 7; Pl. Ex. 11 at ¶¶ 2,
7.
33. Krystal and Kaitlynn always wanted children. After discussing their desire to
be parents between themselves and with their friends and family, Krystal and Kaitlynn
decided that Krystal would undergo in vitro fertilization to conceive and carry their child.
When their daughter was born in April of this year, the couple was “crushed” to learn that
South Dakota would not allow Kaitlynn to be listed as one of their daughter’s parents on
the birth certificate. The couple must now go through the onerous and expensive process
of attempting to obtain a second-parent adoption, through which Kaitlynn could become
their daughter’s second legal parent. It is unclear whether South Dakota will allow the
adoption, given that the State will not allow the couple to marry. If the couple is not
allowed to marry or secure a second-parent adoption of their daughter, Kaitlynn will lack
any legal recognition as one of their daughter’s parents. South Dakota’s refusal to
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recognize Krystal, Kaitlynn, and their daughter as a family exposes them to a number of
unacceptable risks, risks that opposite-sex married couples do not face in South Dakota.
Their family is deprived of a host of legal protections that opposite-sex families are
automatically granted in the event of health emergencies or other crises. The unequal
treatment that the couple faces under South Dakota law is both unfair and demeaning; the
couple worries about the message such discriminatory laws send to their young daughter.
Pl. Ex. 10, at ¶ 8; Pl. Ex. 11, at ¶ 8.
34. On May 22, 2014, Krystal and Kaitlynn attempted to apply for a marriage
license at the Brown County Register of Deeds. Other than the fact that the couple is the
same sex, Krystal and Kaitlynn would be legally qualified to marry under South Dakota
law. When the couple attempted to apply for a marriage license, they were prepared to
provide all of the information required to receive a marriage license and to pay the
required fee. Krystal and Kaitlynn are eager and able to assume the responsibilities of
marriage. When an agent of the Brown County Register of Deeds refused to allow the
couple to apply for a marriage license, she said, “we don’t do that here in South Dakota.”
The experience of being turned away when attempting to apply for a marriage license
was “painful and humiliating” for the couple. Pl. Ex. 10, at ¶ 10; Pl. Ex. 11, at ¶ 10.
35. Krystal and Kaitlynn have considered getting married in a state that allows
same-sex couples to marry. The couple considers South Dakota home and wants to marry
in South Dakota. Pl. Ex. 10 at ¶ 12; Pl. Ex. 11 at ¶ 12.
E. Barbara and Ashley Wright
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36. Plaintiffs Barbara and Ashley Wright are residents of Aberdeen, South
Dakota. Barbara, 40, works as a truck driver and Ashley, 23, is a Certified Nurse
Assistant. The couple has been in a committed relationship for two years. Barbara and
Ashley live as a family with five of their six children from previous relationships.
Additionally, Ashley is pregnant with the first child that the couple decided together to
conceive. Barbara and Ashley look forward to welcoming this newest member of their
family this fall. Pl. Ex. 12, (Decl. of B. Wright), at ¶ 2; Pl. Ex. 13 (Decl. of A. Wright), at
¶ 2.
37. Barbara is a native of Minnesota. She would often bring her children camping
at Storybook Land near Aberdeen. She enjoyed South Dakota and that area so much that
she decided to move to Aberdeen to raise her children in South Dakota. Barbara moved to
South Dakota 11 years ago. Pl. Ex. 12, at ¶ 3.
38. Ashley was born in Nevada and raised in Florida. Before she came out, like
Barbara, Ashley was in an opposite-sex marriage. Ashley and her then-husband decided
to move to South Dakota because it was a great place to raise a family. After Ashley and
her husband divorced, she met Barbara. The two quickly fell in love and share many
passions, including especially raising children. Pl. Ex. 13, at ¶¶ 3–4.
39. Barbara and Ashley were legally married in Minnesota on September 20,
2013. Pl. Ex. 12, at ¶ 10; Pl. Ex. 13, at ¶ 10. After that, the couple discussed having a
child together. In early 2014, Ashley underwent in vitro fertilization. She is now pregnant
and the couple is expecting their first child together in the fall of 2014. In South Dakota,
opposite-sex married couples who conceive a child using in vitro fertilization are able to
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take advantage of a statutory presumption that both spouses are the parents of the child
born during the marriage. Because South Dakota does not recognize Barbara and
Ashley’s marriage, Barbara cannot benefit from the marital presumption and will not be
listed as the baby’s parent on the birth certificate. Therefore, Barbara will lack any legal
recognition as a parent of the couple’s child. South Dakota’s refusal to recognize Barbara
and Ashley as a family deprives the couple and their family of a host of legal protections
that opposite-sex families are automatically granted in the event of health emergencies or
other crises, including problems that may arise when or shortly after Ashley gives birth.
For Barbara and Ashley, this is both unfair and demeaning and the couple worries about
the message these discriminatory laws will send to their child. Pl. Ex. 12, at ¶ 8; Pl. Ex.
13, at ¶ 8.
40. As a family, as spouses, and as South Dakotans, Barbara and Ashley want
their marriage and family to be legally recognized in South Dakota, just as the families of
opposite-sex couples are. Pl. Ex. 12, at ¶ 11; Pl. Ex. 13, at ¶ 11. When the couple married,
Barbara took Ashley’s last name. A few weeks after their wedding, Barbara went to the
Aberdeen Drivers’ Licensing Station and attempted to have her driver’s license changed
to reflect her new name. The agent working at the Drivers’ Licensing Station was hostile
to Barbara. The agent told Barbara to leave the premises and that her family should
“move back to Minnesota.” Because South Dakota does not recognize the couple’s
marriage, the State will not issue Barbara a driver’s license in her married name. For
Barbara, the way she was treated at the Drivers’ Licensing Station was painful and
humiliating. Pl. Ex. 12, at ¶ 11.
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41. In addition to this emotional harm, being denied a driver’s license in her
married name puts Barbara and her family at economic risk. As a truck driver, Barbara is
subject to strict background checks and drivers licensing rules. When she applied for her
most recent job, she almost was not hired because her name on her social security card
was different from the name on her driver’s license. In order to secure the job, she had to
present a copy of her marriage certificate to her employer and spend a significant amount
of time and energy explaining the situation. Doing so required Barbara to out herself at
work, which puts her at risk of being discriminated against due to her sexual orientation.
Such discrimination is not specifically prohibited under South Dakota law. Pl. Ex. 12, at
¶ 11.
F. Greg Kniffen and Mark Church
42. Plaintiffs Greg Kniffen and Mark Church are residents of Sioux Falls, South
Dakota. Greg, 42, and Mark, 39, are both South Dakota natives. They have been in a
loving, committed relationship for 12 years. Pl. Ex. 14 (Decl. of G. Kniffen), at ¶¶ 2-3;
Pl. Ex. 15 (Decl. of M. Church), at ¶¶ 2-3.
43. Mark came out to his family through his relationship with Greg. Seeing the
two of them together, Mark’s parents understood what a loving, committed relationship
two people of the same sex can have together. Pl. Ex. 15, at ¶ 4.
42. Over the years, Greg and Mark had discussed getting married, but did not
think it would be a real possibility until United States v. Windsor. The couple followed
that case closely and were “elated” with the Supreme Court’s decision. After reading the
opinion, Greg immediately proposed to Mark. Pl. Ex. 14, at ¶ 8; Pl. Ex. 15, at ¶ 8.
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43. As much as Greg and Mark would have preferred to get married in South
Dakota, their home, the couple decided that they could not wait and deny themselves the
responsibilities and benefits of marriage afforded by the federal government. Greg and
Mark married in Minnesota on October 11, 2013. Pl. Ex. 14, at ¶ 10; Pl. Ex. 15, at ¶ 10.
44. Even though Greg and Mark are able to enjoy some of the protections
provided marriage as a result of the federal government, it is still critical to them that
South Dakota legally recognize their marriage. Many significant protections afforded to
married couples are under of state laws. Despite being lawfully married in Minnesota,
Greg and Mark cannot avail themselves of these state-level protections in South Dakota.
For example, in the event that one of them passes, the survivor will be taxed at a
significantly higher rate for any inheritance. Of equal importance to Greg and Mark is the
social significance of South Dakota recognizing their marriage, which conveys the
message that their family and relationship are an important and valuable component in
the fabric of society. Pl. Ex. 14, at ¶ 11; Pl. Ex. 15, at ¶ 11.



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