Federal Judge Richard Gergel of Charleston has signaled that he likely will rule soon that the U.S. Constitution trumps the state constitution and so nullify a state Supreme Court order that currently bars a Charleston probate judge from issuing a marriage license to two women who want to get married.
In a little-noticed public hearing late last month, Gergel indicated to attorneys for state Attorney General Alan Wilson and Gov. Nikki Haley – who are fighting to deny South Carolina same-sex couples the same rights that heterosexual couples have to get married – that he would quickly overturn South Carolina’s ban on gay marriage.
During that Oct. 24 hearing, Emory Smith, an attorney in the attorney general’s office, begged Gergel to let the attorney general have just three more days to file some legal papers to stop a possible marriage between Colleen Condon and Anne Bleckley, both of Charleston County.
Gergel said no. The hearing lasted just 15 minutes.
“Let me tell you my view, Mr. Smith, ” Gergel said, according to a public transcript of the hearing, “The plaintiffs in this case have asserted an irreparable injury. They assert their marriage was stopped by action of the defendants ... and I believe they’re entitled to an expeditious review.”
All filings in the case are now due by noon Wednesday, according to court records. Gergel could rule anytime after that.
A Gergel ruling that overturns South Carolina’s ban on same-sex marriage would not necessarily mean that Condon and Bleckley would be allowed to get married right away. But it would be the first ruling by a South Carolina federal judge on same-sex marriage and set the stage for Wilson and Haley to either drop their opposition or file appeals, said lawyers familiar with the case.
According to the transcript, Gergel also indicated to attorneys for both sides at the Oct. 24 hearing that:
• According to the U.S. Constitution, a federal court is superior to the S.C. Supreme Court. Since Oct. 9, a three-judge majority of the state Supreme Court has prohibited a Charleston judge from issuing a marriage license to the two women until the issue is decided in an S.C. federal court.
“A decision by my court would control ... over the matter of constitutional law,” Gergel said, according to the transcript.
• He regarded a 4th Circuit Court of Appeals decision in a Virginia case, and an affirming action by the U.S. Supreme Court, to be a controlling precedent for South Carolina laws regarding same-sex marriage cases.
In that Virginia case, known as Bostic, a three-judge panel of the 4th U.S. Circuit Court of Appeals in late July voted, 2-1, to overturn Virginia’s ban on same-sex marriage. In early October, the U.S. Supreme Court declined to review Bostic, in effect granting gay couples in the 4th Circuit the freedom to marry.
The Bostic case found same-sex marriage “to be a fundamental right,” Gergel told lawyers at the Oct. 24 hearings.
“If any party asserts that Bostic is wrongly decided, I want that stated forthrightly that you are arguing against precedent,” Gergel said. “I’m not trying in any way to limit your ability to argue it, but I want it clearly stated just about where everybody stands.”
After the U.S. Supreme Court ruling, other states in the 4th Circuit dropped their opposition to same-sex marriage. Another state, Maryland, already allowed such marriages. Now, of the five states in the 4th Circuit, only South Carolina is fighting on, facing almost certain defeat in the courts, legal experts say.
“South Carolina is always on the wrong side of history,” said Lewis Burke, a professor at the University of South Carolina who has written extensively on state civil rights history. “They – state officials – were fighting for segregation in the schools until 1970, 16 years after Brown vs. Board of Education.”
Three other same-sex marriage cases have been filed in federal court. One, in Columbia, was filed in August 2013. The other two were filed in the past month. Those three are before Judge Michelle Childs of Columbia.
Those three are what is called “recognition” lawsuits – that is, they were filed by same-sex couples who were already legally married in other states or jurisdictions and who want South Carolina to grant them legal recognition, too.
The Charleston case under Gergel’s jurisdiction has a different legal principle involved. A county probate judge is refusing to grant a marriage license to two South Carolina residents who want to get married.
Late Monday, Haley and Wilson filed a 57-page brief with Gergel, urging him to support a state government’s right to deny a same-sex couple the same freedom to marry that heterosexual couples have. Their brief indicated Haley and Wilson are prepared to try to get the issue to the U.S. Supreme Court.
“The issue of same-sex marriage has proceeded through the federal courts in other states at an unprecedented pace,” Haley and Wilson argued. “Centuries of precedent have been swept away in other jurisdictions in the space of only two or three years. . . . But the legal proceedings are not over. The U.S. Supreme Court has not weighed in.”