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A federal judge ruled Monday that the ban on same-sex marriage passed by voters in South Dakota violates the United States Constitution. This creates a clash in one of the few courts of appeals that has yet to rule on the constitutionality of the ban on marriage.

U.S. District Judge Karen Schreier ruled in favor of six same-sex couples who filed a lawsuit against North Dakota’s ban in June of 2014.

Schreier said the ban violated the 14th Amendment by denying gay and lesbian couples the right to marry “without sufficient justification.”

The judge immediately stayed her decision until the State Attorney General, Republican Marty Jackley, appeals her ruling to the Eighth Circuit Court of Appeals.

The Eighth Circuit has not issued an opinion on marriage equality one way or another since it upheld Nebraska’s same-sex marriage ban in 2006.

Other appeals to the Eighth Circuit include appeals from Arkansas and Missouri where lower court judges also struck down those state bans. Several more cases are working their way up through the court system in that district where couples in Nebraska and North Dakota sued to have those state’s bans overturned.

The First, Fifth and Eleventh Circuits are the only others who have not yet ruled on marriage equality. And out of all of the circuits which have ruled – only the Sixth Circuit ruled to uphold a ban.

If Judge Schreier’s decision is upheld by the Eighth Circuit Court of Appeals, South Dakota will be the 39th state to allow LGBTQ marriages.