Colleen Condon got a text message from someone in Charleston County’s Courtroom 3 on Tuesday that said, “You’re getting your license tomorrow.”
She wrote back, “No we’re not.”
The person insisted.
So Condon and her fiancée Nichols Bleckley decided to go see. They arrived around 8 — 30 minutes before the Charleston County Probate Court opened — and stood outside with five other couples, temperatures around freezing.
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The text was right. They got the license they applied for in October, the one they sued the state to get.
“Then we went outside and watched couple number two get married,” Condon said.
Kristin Anderson and Kayla Bennett were married by Tobin Williamson, an ordained minister. Anderson elected to take her wife’s last name.
The legal wrangling surrounding the issue of gay marriage in South Carolina has been at once dramatic and confusing during the past 15 months, when the first lawsuit challenged South Carolina’s marriage law
Not much happened for months while everyone waited to see what the 4th Circuit Court of Appeals would do in a case from Virginia. This summer, the court ruled such laws violate the U.S. Constitution, and in October, the U.S. Supreme Court elected not to weigh it, effectively agreeing.
The maneuvering since has been frenzied and furious. Motions, counter motions, responses in three federal courthouses, Charleston, Columbia and Greenville. Condon and Bleckley sued in Charleston. The Attorney General responded to every argument, every claim, in both that case and the one filed in August 2013 by Tracie Goodwin and Katherine Bradacs.
Last week, Judge Richard Mark Gergel in Charleston ruled in the Condon case that marriage is a fundamental right and denying it to same-sex couples is unconstitutional. He issued a temporary stay until noon Thursday to allow the attorney general to appeal.
Tuesday, Judge J. Michelle Childs ruled in Bradacs that the state must recognize marriages performed in other states. No stay issued.
Tuesday night, Attorney General Alan Wilson emailed an appeal to the U.S. Supreme Court.
On Wednesday morning, Charleston Probate Judge Irv Condon, a distant relative of Colleen Condon, went ahead and issued five licenses after his lawyer advised him he could legitimately do so. He was barred from any further action on gay marriages by an order of the South Carolina Supreme Court, which said all probate judges in the state needed to wait until the Bradacs case was decided.
Childs ruled late Tuesday afternoon.
“They very specifically reference the Bradacs case,” said John Nichols, Judge Condon’s attorney.
Shortly after the judge issued the first licenses, though, a memo was sent by South Carolina Court Administration saying wait until the deadline for the stay passes or the U.S. Supreme Court acts.
The issue was on hold again. Then, at 4:15 p.m. Tuesday, the South Carolina Supreme Court lifted its stay, allowing probate courts to issue the license immediately.
Minutes passed. Hours. Everyone involved checked email or the U.S. Supreme Court website. What would Chief Justice John Roberts do?
Gay rights activists planned events at courthouses around the state. In Greenville, couples, their families and supporters planned to gather at the Greenville County Probate Court at 11:30 a.m. Thursday and stay all day. It would be a celebration.
Lawyers in the gay-marriage lawsuits reveled in all that had happened even as they worked on more briefs — just in case.
“It was a cold morning, but a warm moment,” said Malissa Burnette, one of the lawyers on the Condon case.
Palmetto Family sent out a news release saying all hope was not lost to stop gay marriage from becoming legal.
“The probate judge in Charleston has jumped the gun once again,” the organization said. “Please know that AG Wilson and his team are making a strong case to Chief Justice Roberts to postpone.”
They urged people to sign their petition, showing support for Wilson.
Bishop Robert E. Guglielmone of the Catholic Diocese of Charleston issued a statement, saying, “Our Catholic faith upholds the dignity of every human person, including persons with same-sex attraction. Regardless of any civil court ruling, the Catholic Church teaches and will continue to teach that marriage is a sacramental union between one man and one woman which bonds them for life.”
SC Equality and other gay rights groups posted photos of Condon and Bleckley on Facebook and said “Marriage equality is here to stay in South Carolina. Change your profile picture and spread the word!”
Dozens did so.
Lawyers speculated about what the court might do. Twice before, Supreme Court justices stayed an appeals court decision until they consulted the entire court, then lifted the stay within days — Anthony Kennedy in the 9th Circuit and Sonia Sotomayor in the 10th Circuit.
Colleen Condon said she expected the high court to do nothing. The 4th Circuit ruled, the other states in the circuit abided by it.
“How can they say anything different?” she said. It would call into question all the marriages that have been performed in all those states in recent months.
Gay marriage became legal in Maryland in January 2012 after the General Assembly passed a law and voters approved. North Carolina, Virginia and West Virginia allowed gay marriage in the week after the U.S. Supreme Court decided not to consider rulings from the 4th Circuit and two other circuits.
But “there is a hitch in the giddy-up,” John Nichols said.
All that was before the 6th Circuit broke ranks with the other five circuits that have found gay marriage bans unconstitutional. In a 2-1 decision, that court said the matter was up to the states. The dissenting judge said the other two did so to force the U.S. Supreme Court to settle the issue.
A state’s right to decide its own marriage laws has been a fundamental argument advanced by Wilson.
It is widely expected the Supreme Court will take up the case. And that they’ll do so in this term of court, which ends next June.
But later in the afternoon, Nichols said he thinks probate judges will be allowed to continue to issue the licenses because of the state high court order no matter what the chief justice does.
Meanwhile, back in Charleston, Bleckley and Condon went with the other couples to Caviar and Bananas for brunch and mimosas. Condon, an attorney, canceled all her appointments and spent the afternoon at home.
“It has been more stressful than I imagined,” she said. “Nothing compared to the people who have fought this fight for 20 years, though.”
She and Bleckley stored their marriage license in a safe place and talked about possibly moving their wedding date to the spring rather than the fall. Everything had happened much quicker than they thought.
And they waited for Condon’s son to come home from school to tell him the news.