Gov. Nikki Haley and state Attorney General Alan Wilson are doomed to fail in their efforts to fight against same-sex marriages after Monday’s clear signal from the U.S. Supreme Court that such marriages are legal in South Carolina, some experts say.
“The state can continue to fight if it wants, but it’s a waste of taxpayers’ money – (Haley and Wilson) are going to lose, but they may feel politically they don’t want to give in and have people say they are responsible for gay marriage in South Carolina,” said Donald Songer, a University of South Carolina political scientist and judicial expert.
“If the attorney general was smart, he’d just say this is a waste of time, money and would be fruitless litigation,” said Carl Tobias, constitutional law professor at the University of Richmond, speaking of the same-sex marriage ruling that was just upheld by the U.S. Supreme Court.
Neither Wilson nor Haley would give a specific answer when asked by The State newspaper how much the ongoing legal action is costing.
In Monday’s action, the U.S. Supreme County let stand a July ruling by the 4th Circuit Court of Appeals that overturned a Virginia ban on same-sex marriage. The 4th Circuit oversees federal courts in both Carolinas, Virginia, West Virgina and Maryland. Its decisions are binding on those states.
“I’m not surprised at the governor – I assume to her, it’s politics. I am surprised that Wilson is doing this because he is a lawyer. He knows the 4th Circuit decision is going to apply to South Carolina,” said University of South Carolina School of Law family law associate professor Marcia Zug. “We all know what the final result will be – same-sex marriage is coming.”
Haley and Wilson said Monday they would keeping on fighting in federal court a lawsuit filed in 2013 by a South Carolina same-sex couple who live in Lexington County. Katherine Bradacs and Tracie Goodwin, who were legally married in the District of Columbia in 2012, said in their lawsuit they are denied numerous equal rights and benefits that married South Carolina heterosexual couples have.
In statements Monday, Wilson and Haley said they would keep fighting the couple’s bid to be on an equal legal footing with married heterosexual couples.
Wilson released a statement saying, “Our case has not yet been decided. Until the courts rule on the matter, South Carolina will seek to uphold our state constitution.”
A governor’s spokesman released this statement: “Governor Haley agrees with Attorney General Wilson – our voter-approved state law should be followed until a court rules on it directly.”
State Sen. Mike Fair, R-Greenville, an outspoken supporter of traditional marriage between a man and a woman, said he believes a majority of South Carolinians support Wilson and Haley on the issue. “They would support the attorney general and the governor only going down with a fight – and fighting to win, not fighting to lose,” Fair said.
Meanwhile, Haley’s opponents for governor in the November race weighed in.
“Further litigation on this issue will be a waste of time and precious taxpayer dollars,” said state Sen. Vincent Sheheen, D-Kershaw. But – in an effort to come down on both sides of the issue – Sheheen appeared to endorse Haley’s and Wilson’s efforts to continue battling in a South Carolina federal court.
“The Federal District Court in South Carolina should rule on the South Carolina case, and when that decision is given, whether you agree with it or not, we must abide by it,” Sheheen said.
Tom Ervin, a former judge and petition candidate for governor, said, “The Supreme Court has made its decision and further action by the state is a poor use of resources.”
The lawsuit Bradacs and Goodwin filed against Haley and the attorney general attacks not only a Legislature-passed 1996 law that prohibits marriage for same-sex couples, but a 2007 amendment to the state Constitution that expressly prohibits marriage for same-sex couples. Almost 80 percent of South Carolinians approved that amendment at the polls in 2006.
In 2012, the U.S. Supreme Court in a 5-4 decision struck down the federal Defense of Marriage Act. The decision has led to a wave of federal and appellate court decisions that almost unanimously strike down state bans on same-sex marriage.
Tobias said the S.C. federal judge in the case, Michelle Childs, is bound by Virginia’s Bostic decision, so she has to rule against Haley and Wilson. Then, if Haley and Wilson appeal, their appeal will go to the 4th Circuit Court of Appeals, which already has ruled.
“If they want to be stubborn, they can do that,” Tobias said. “It could be a couple of months. But it will cost them money and time, and they are just going to look stupid. They aren’t going to win – that’s the bottom line.”
Songer said Haley and Wilson are like South Carolina’s segregationist politicians of the past who fought federal laws and courts for years to prevent giving blacks equal rights.
“They (politicians in the past) didn’t want want people blaming them for ending segregated schools,” Songer said. “I hate to see politicians fight a fight they are clearly going to lose. All they are is delaying a little bit and they are clearly going to lose.”
Although Bradacs’ and Goodwin’s suit was filed in August 2013, and Wilson and Haley have filed a reply, that suit basically has been on hold. All sides agreed to wait and see what happened in the Virginia case before proceeding.
John Nichols, a lawyer for Bradacs and Goodwin, said Monday he and co-counsel Carrie Warner are drafting a motion for summary judgment to present to Judge Childs in the near future.
Such a motion, which argues no dispute exists about either facts or law in a case, is basically a request for the judge to toss out a case as having no merit before it even gets started.
“We hope the state will not waste valuable resources defending that which the courts have declared is not defensible,” Nichols said.
Staff writer Andrew Shain contributed.