Lawyers for a Charleston same-sex couple are urging the 4th Circuit Court of Appeals to dismiss an emergency motion from S.C. Attorney General Alan Wilson to stop the two women from getting married.
Lawyers for Colleen Condon and Ann Bleckley, in a motion filed just before midnight Sunday, argue gay marriages should be allowed to proceed in South Carolina, because the state is unlikely to win its appeal to block them, and the state has not shown it would suffer harm if such marriages take place.
Wilson’s request for an emergency stay rests on such shaky legal grounds, the lawyers said in the filing, that some of Wilson’s claims are “overstated, if not completely contrived” and other claims are “nothing short of mystifying.”
“The state’s likelihood of success is grounded in little more than pure speculation and hopeful wish,” according to the filings, written by Nekki Shutt, Malissa Burnette and Vickie Eslinger, all of Columbia, and by Beth Littrell of Atlanta.
Wilson has little chance of prevailing, a legal expert said Monday.
“I can’t imagine the 4th Circuit will do anything that is favorable to the attorney general,” said Carl Tobias, a constitutional-law professor at the University of Richmond, where the 4th Circuit is located. “I think it will be quick. I think they will decide by (Tuesday).”
But the 4th Circuit may grant Wilson an extended stay to try to take his case on to the U.S. Supreme Court, Tobias said, though he thinks the high court is unlikely to take South Carolina’s case.
Wilson’s office declined comment Monday.
U.S. District Judge Richard Gergel, ruling last week in the suit brought by Condon and Bleckley, threw out South Carolina’s state constitutional ban on same-sex marriages and said such marriages could begin at noon this Thursday.
Wilson then asked the appeals court to put the order on hold, saying that the marriages would cause the state irreparable harm and that the U.S. Supreme Court is likely to take up the issue.
If the marriages proceed, it will cause legal confusion about the status of those who marry if the state wins its appeal, Wilson argued. “At this stage, the injury to the state and its people from allowing marriages to go forward in the interim outweighs any perception of harm to the plaintiffs,” Wilson wrote.
Burnette and her colleagues said in their latest motion that dozens of court decisions nationwide already have refuted the legal grounds that Wilson claims he will prevail on.
And in the five-state 4th Circuit, all states except South Carolina now allow gay marriage, subscribing to the 4th Circuit’s July ruling that overturned a Virginia ban on gay marriage. Fourth Circuit rulings are binding on the states within the circuit, the Condon-Bleckley filing noted. Those other states are Virginia, West Virginia, North Carolina and Maryland.
Still, Wilson has argued a decision by the 6th U.S. Circuit Court of Appeals in Cincinnati upholding gay marriage bans in several states means the issue will likely go before the U.S. Supreme Court.
While the 6th Circuit decision was in a decided minority compared with other court decisions around the country, there are now two opposing decisions from appeals courts – a split that legal observers say is likely to cause the U.S. Supreme Court to finally take up the issue. If the high court decides to hear the 6th Circuit case, it is possible that it could also decide to hear Wilson’s appeal at the same time.
In his filing last week, Wilson said he will seek to take his appeal to the U.S. Supreme Court if the 4th Circuit turns him down.
But given the earlier 4th Circuit decision, lawyers for Condon and Bleckley argue it is unlikely South Carolina can win its appeal. “A panel of this court is not free to abandon a prior panel ruling and instead follow another circuit’s ruling on the same issue,” they wrote.
In an interview, Burnette said it is possible for Gergel’s stay to be lifted by Thursday and for Condon and Bleckley to be issued a marriage license.
“What they seek is the right to get married,” Burnette said, but added she did not know when any marriage would take place.