by Paul Bowers
A federal judge this morning struck down South Carolina's constitutional amendment banning same-sex marriages, paving the way for marriage equality in the Palmetto State. But because the state attorney general can still appeal the judge's decision to a higher court, legalization of gay marriage in the Palmetto State is still not a done deal.
This morning, U.S. District Judge Richard Mark Gergel ruled in the plaintiffs' favor in the case Condon v. Haley, in which Charleston same-sex couple Colleen Condon and Ann Nichols Bleckley sued Gov. Nikki Haley, Attorney General Alan Wilson, and Charleston County Probate Judge Irvin G. Condon for denying their application for a marriage license.
This morning, Judge Gergel issued a ruling in which he dismissed Gov. Haley as a defendant but prohibited Wilson and Judge Condon from enforcing South Carolina's same-sex marriage ban, a constitutional amendment that passed by a 78-percent voter referendum in 2006. However, acquiescing to a request from Wilson, Gergel placed a temporary injunction so that his ruling will not take effect until Nov. 20 at noon. In the meantime, Wilson is allowed to appeal the decision to the Fourth Circuit Court of Appeals, which tries cases from Maryland, Virginia, West Virginia, North Carolina, and South Carolina.
Charles Joughin, a spokesperson for the Washington D.C.-based Human Rights Campaign, applauds Gergel's decision but says the legal battle isn't over yet. The Fourth Circuit previously overturned Virginia's ban on same-sex marriage in the case Bostic v. Schaefer in late July, so, Joughin says, the Fourth Circuit will likely decline to hear the case en banc (that is, with the full bench of judges present). However, if the Fourth Circuit denies a request for an en banc hearing, Wilson will be able to appeal the case all the way to the U.S. Supreme Court, seeking to extend the stay on the case beyond Judge Gergel's one-week injunction.
"No [same-sex] marriages will happen during the one-week stay, and presumably the state will request a stay of the U.S. Supreme Court," Joughin predicts.
Attorney General Wilson, who has been a staunch defender of the state's marriage ban so far, has not announced whether he will appeal the decision. Reached by phone, a spokesman said, "The attorney general's office has received the ruling and we are reviewing it."
In his ruling, Judge Gergel writes that "the Court finds that Bostic provides clear and controlling legal authority in this Circuit" and orders Wilson to stop "interfering in any manner with Plaintiffs' fundamental right to marry or in the issuance of a marriage license to Plaintiffs." Gergel also offers a rebuttal to some of Wilson's arguments in defense of the marriage ban on page 16 of the ruling:
Defendant Wilson argues that the "domestic relations exception" deprives federal courts of jurisdiction over this case, and this Court is mandated to abstain from addressing Plaintiff's federal constitutional right to marry their same-sex partner. Contrary to Defendant Wilson's contention, the Bostic Court did address the state-asserted right to control marital relations. The Fourth Circuit carefully analyzed the competing constitutional principles of state control of marital relations and the federal protection under the Fourteenth Amendment of the fundamental right of liberty, including the "intensely personal choice" of "whom to marry." Citing Loving and Windsor, the Bostic Court concluded that states must exercise their authority over marital relations "without trampling constitutional guarantees" of same-sex couples and rejected Virginia's claim that principles of federalism required a different outcome. It held that while states have the authority to regulate domestic relations and marriage, "[s]tate laws defining and regulating marriage, of course, must respect the constitutional rights of persons."
The Condon v. Haley case originally came about because, for a brief period on Oct. 8, Judge Condon began accepting marriage license applications from same-sex couples. Colleen Condon and Bleckley applied, but Wilson intervened and successfully asked the S.C. Supreme Court to block Judge Condon from issuing any same-sex marriage licenses. (In case you were wondering, Judge Condon is Colleen Condon's third cousin.)
Another case challenging South Carolina's laws on same-sex marriage, Bradacs v. Haley, is still pending before Judge Michelle Childs in the Columbia Division of the U.S. District Court for South Carolina. In that case, a state Highway Patrol trooper and her wife who were married in Washington D.C. are seeking to have their marriage legally recognized in South Carolina. If and when Childs delivers a judgment on the case, it will have a narrower impact than the Condon v. Haley ruling because it will only grant legal recognition to marriages performed outside of the state. Judge Gergel's ruling in Condon, on the other hand, would effectively overturn both South Carolina's ban on recognizing out-of-state same-sex marriages and its ban on granting marriages to same-sex couples inside the state.
Joughin, of the Human Rights Campaign, remains convinced that the Fourth Circuit ruling in Bostic will keep the federal judge in Bradacs from overturning Gergel's ruling. "The Fourth Circuit Court of Appeals has already ruled that state bans on marriage for same-sex couples are unconstitutional, so regardless of how the judge rules in Bradacs, the Fourth Circuit will maintain that South Carolina's marriage ban must be struck down in its entirety," Joughin says.
Looking forward, all eyes will likely be on the U.S. Supreme Court to either make a ruling in Condon v. Haley or decline to hear an appeal from Attorney General Wilson. Joughin adds:
"Last month the [U.S. Supreme] Court allowed pro-marriage equality rulings from the Fourth, Seventh, and Tenth Circuits to stand. But we got a loss in the Sixth Circuit earlier this month, which creates a circuit court split — increasing the likelihood that the Supreme Court will take up one or more of these cases on appeal and decide the issue nationwide."