While a federal appeals court ruling Monday gave hope to gay-marriage advocates, South Carolina’s ban on same-sex marriage remains in effect and state leaders vowed to uphold it.
The 4th Circuit Court of Appeals ruled Monday that Virginia’s ban on gay marriages is unconstitutional — a decision that impacts South Carolina since it is in the same federal judicial district.
After the ruling, the attorney general in North Carolina, also in the 4th District, said he would stop defending challenges to that state’s gay-marriage ban. But South Carolina’s attorney general said he would continue to defend the ban, added to the state Constitution by voters in 2006.
“Currently, South Carolina’s law remains intact,” said Mark Powell, a spokesman for S.C. Attorney General Alan Wilson, a Republican. “People should not rush to act or react until that time when a decision is made by the highest court in the land.”
However, a Lexington County couple who challenged the S.C. ban in court plans to ask for summary judgment ending their case, filed nearly a year ago, a Columbia attorney said.
“It’s a huge victory today,” said Carrie Warner, who is helping represent the couple who want their Washington, D.C., marriage recognized in South Carolina. “It’s great momentum for our case.”
Opponents held out hope the S.C. law might be upheld.
Palmetto Family Council president Oran Smith, who helped craft South Carolina’s gay-marriage ban amendment, called the Virginia ruling a setback. But, he said, a judge might take into account that South Carolina’s ban is different, allowing same-sex couples the right to draw up contracts to share assets, such as cars and homes, for example.
“We are hoping they see it as a different amendment than Virginia’s,” he said.
However, a University of South Carolina legal expert said a U.S. Supreme Court ruling that overturns state gay-marriage bans is inevitable. Gay-marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year.
“It’s about how many months or years, not if,” said Marcia Yablon-Zug, a USC family law professor.
But S.C. Gov. Nikki Haley said she would join Wilson in enforcing the state’s ban.
“This administration will continue to uphold the will of the people,” Republican Haley’s office said in a statement. “Ultimately, the U.S. Supreme Court will decide this issue, and until that time, South Carolina will continue to be governed by the laws of our state.”
Haley’s Democratic opponent in November, state Sen. Vincent Sheheen, was noncommittal Monday.
Sheheen “will monitor the court’s proceedings as the process continues to move forward,” said his campaign manager, Andrew Whalen.
‘Time to stop making arguments we will lose’
North Carolina's attorney general said Monday that he plans to stop fighting challenges to that state's same-sex marriage ban.
Attorney General Roy Cooper, a Democrat, said the federal appellate court ruling means North Carolina's ban likely will be overturned.
“Simply put, it is time to stop making arguments we will lose and instead move forward, knowing that the ultimate resolution will likely come from the U.S. Supreme Court. ... (T)he state of North Carolina will acknowledge the 4th Circuit opinion that marriage is a fundamental right and that our office believes that the judges are bound by this 4th Circuit decision.”
Defenders of gay-marriage bans are likely to ask for a stay to delay the appeals court ruling, pending their next appeal. Otherwise, licenses could be issued to Virginia's same-sex couples in 21 days. Once a stay becomes final, the decision will apply to the entire circuit, including South Carolina, American Civil Liberties Union lawyer James Esseks said.
“We won’t have marriages this afternoon,” said Ryan Wilson, executive director for S.C. Equality.
But the head of the state’s main gay-rights advocacy group said he expects the decision to help pave the way for same-sex marriage in South Carolina.
“The judge will have to come up with a very compelling reason why South Carolina is different than the Virginia case,” Wilson said.
Columbia attorney Warner said the Lexington County couple who have challenged South Carolina’s ban, Katherine Bradacs and Tracie Goodwin, plan to continue with their lawsuit despite the likelihood the Virginia case will be appealed to the U.S. Supreme Court first.
“It makes sense to keep punching,” Warner said. “It’s anyone’s guess whose case will get (to the Supreme Court) first.”
USC’s Yablon-Zug said she expects the federal judge in the S.C. case to rule the state’s gay-marriage ban unconstitutional after the appeals court decision. “I don’t think the judge wants to be on the wrong side of history,” she said.
Former S.C. legislator writes decision
The appeals court ruling Monday was the latest in a string of decisions overturning bans across the country.
A three-judge panel of the 4th Circuit in Richmond voted 2-1 that Virginia’s constitutional and statutory provisions barring gay marriage and denying recognition of such unions performed in other states violated the U.S. Constitution.
“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” Judge Henry Floyd wrote.
Floyd, a former S.C. legislator and circuit judge who graduated from Wofford College and University of South Carolina law school, was appointed to the federal bench in South Carolina by then-President George W. Bush, a Republican. He was appointed to the Appeals Court in 2011 by President Barack Obama, a Democrat.
Judge Roger Gregory, who joined Floyd in the majority, was a recess appointment of then-President Bill Clinton, a Democrat, who was renominated by Bush in 2001.
Judge Paul Niemayer, who dissented, was appointed by then-President George H.W. Bush, a Republican.
The 4th Circuit is the second federal appeals court to overturn gay-marriage bans, but the first to affect the South, a region where the rising tide of rulings favoring marriage equality is testing concepts of states' rights that have long held sway.
Most cases won by gay-marriage proponents are still under appeal. More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.
The U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.