EXCLUSIVE: Judge bows out of SC gay marriage suit

jmonk@thestate.comNovember 14, 2013 

— A veteran federal judge has removed himself from presiding over what promises to be a highly publicized case – the lawsuit brought by a lesbian couple challenging South Carolina’s laws that make gay marriage illegal.

Federal Judge Joe Anderson of Columbia said he recused himself, because as a member of the executive board of the Indian Waters Council of the Boy Scouts of America – which covers five Midlands counties – he recently took a position in Scout discussions over whether local Scouts should admit gay Scouts and have gay Scout leaders.

“I voted for the national policy, which at present is to admit gay Boy Scouts but not have gay Scout leaders,” Anderson said. “It was very controversial, and we lost some churches that sponsor us because of it.”

Also, Anderson said, one of the plaintiffs in the case is a Scout leader in Kershaw County, and earlier this year, she brought her partner to a Scout meeting.

“That caused some parents to protest, and they brought their complaint to the Scout board that I’m on,” Anderson said. “We had to remove her as a Scoutmaster.”

Anderson said no one objected to his being the judge and he made the decision on his own.

“I still think I could have been fair,” Anderson said, “but the test for recusal is could somebody have reasonably questioned whether you were impartial going into the case, and I felt that was the reason I needed to step aside.”

Anderson will be replaced on the case by U.S. Judge Michelle Childs, an appointee of President Barack Obama. She has served since 2010.

University of South Carolina School of Law ethics professor Greg Adams said Thursday he agreed with Anderson’s decision, because the legal standard is whether someone could reasonably question his participation.

It’s too bad he won’t hear the case, Adams said, because of all the federal judges in South Carolina, Anderson is regarded as the “best of the best.”

Anderson, one of the state’s senior and most respected federal judges, has presided over numerous complex and well-publicized cases in his 27-year career. He was appointed to the bench in 1986 by then-President Ronald Reagan.

“He would have put that intellect to work and decided what the best approach was.”

The lawsuit, filed in the Columbia division of federal court in late August, was brought by Katherine Bradacs, a trooper with the S.C. Highway Patrol, and Tracie Goodwin, a former school resource officer with the Richland County Sheriff’s Department. The couple was legally married last year in Washington, D.C., according to the lawsuit.

Gov. Nikki Haley and Attorney General Alan Wilson are named as defendants.

The lawsuit challenges the state’s Defense of Marriage Law and a 2006 amendment to the state Constitution that expressly banned same-sex marriage. That amendment passed by a 78 percent majority.

Married couples have numerous basic rights and privileges that non-married couples don’t have – among them hospital visitation, retirement benefits and being on a family member’s health insurance policy.

In the past few years, same-sex marriage has been made legal in 13 states and the District of Columbia. It is still banned in 35 states, and two states have no policies, according to news reports.

In June, a U.S. Supreme Court decision struck down the 1996 federal Defense of Marriage Act. And the federal government declared earlier this year that all same-sex couples who are legally married will be recognized as such for federal taxes.

Normally, judges recuse themselves from presiding over a case for matters like having a financial interest in one of business parties to a lawsuit, or if they are friends or relatives of one of the lawyers involved.

Ironically, one could argue that Anderson’s position in the Scouts case – favoring admitting gay Scouts but at the same time being against allowing gays to be Scout leaders – is a position that comes down on both sides of the issue.

Anderson said he thinks he did the right thing because judges have to be impartial.

“The whole judicial system takes off from the position that you have a neutral decision-maker who doesn’t have any preconceived opinions one way or the other,” Anderson said. “It’s important for the integrity of the courts.”

Anderson no doubt knew he was giving up one of those cases that come along only rarely in a judge’s lifetime, Adams said

“This is the Brown vs. Board of Education lawsuit of our age,” Adams said, saying that – as in segregation – the same-sex marriage issue pits evolving societal values against older societal values solidly enshrined in law.

Childs, who is replacing Anderson on the case, “will do a very thoughtful job, deciding the case on the facts and the law,” said Adams, who taught Childs at USC’s law school.

However Childs decides, the case will undoubtedly be headed to the U.S. Supreme Court. Similar cases are being brought around the country.

“The purpose of bringing this lawsuit is not to get a federal judge to strike down the S.C. state law. The purpose is to bring the issue before the U.S. Supreme Court,” Adams said.

Reach Monk at (803) 771-8344

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