It’s a waiting game now for Colleen Condon and Nichols Bleckley and dozens and dozens more.
They, along with lawyers and observers, are waiting for what some say is an imminent decision by U.S. District Judge Richard Mark Gergel in Charleston on whether to issue a preliminary injunction that, if granted, would order the state to stop enforcing its ban on gay marriage.
It’s one of four lawsuits pending in federal courts in Charleston, Columbia and Greenville, and the legal briefs and motions are flowing into the courthouses like a river to the sea.
“I thought he would have ruled by now,” said John Nichols, a Columbia lawyer who is representing the plaintiffs in one of the two Columbia cases and a defendant in the Charleston case.
On Friday, Attorney General Alan Wilson filed a motion to dismiss the Columbia case known as Bradacs, in which two women married in Washington, D.C., are asking the court to force South Carolina to recognize the marriage.
Nichols said he plans to respond to that by Monday afternoon. That could set up a decision by U.S. District Judge J. Michelle Childs, providing Gergel doesn’t beat her to it.
Observers need a scorecard is follow all these lawsuits. In all, 21 lawyers are working on the cases, some are working on more than one. Eleven lawyers are working for plaintiffs. The Attorney General’s Office has five lawyers on the cases, two private attorneys are representing one of the defendants and three lawyers have filed what’s known as a friend of the court brief in support of the Columbia couple.
The issue has also drawn the attention of national civil rights organizations – Lamba Legal and the ACLU.
In South Carolina, the lawsuits began with Bradacs, filed in August 2013. Katherine Bradacs and Tracie Goodwin of Lexington County were married in 2012. Bradacs, a South Carolina state trooper since 2011, and Goodwin, a U.S. Air Force veteran who served in Saudi Arabia and is 80 percent disabled, have three children. Two of the children are twins that Goodwin bore using Bradacs’ ova, but because their marriage is not recognized by the state, Bradacs cannot be added to the birth certificates of her biological children without adopting them.
“Bradacs was required to obtain a physician’s statement proving she was the biological mother of B and C during Goodwin’s delivery of the children,” the lawsuit states.
On Wednesday, The Lawyers Committee for Children’s Rights filed a friend of the court brief in the case that outlines the negative effect of the law on children of gay parents. Citing a number of studies, the non-profit organization says children of gay couples thrive as do any other child from a two-parent home but are humiliated and discriminated against by South Carolina’s law.
“It may be said of South Carolina’s harsh treatment of children raised in same-sex unions that they are “nullium liberi,” as the common law goes – the children of nobody,” the brief states.
The lawyer’s organization said children do not understand for many years the concept of being biologically related to someone. They form attachments with whoever cares for them, loves them.
“Children do not choose their parents or their parents’ sexual orientation. South Carolina children are entitled to equal protection under the law regardless of their parents’ gender identity,” the brief states.
The U.S. Census in 2010 found that among all regions of the United States, the highest percentage of parents of the same gender are in the South: 36 percent of lesbian couples and 24 percent of gay couples.
In those households, the brief says, the harm to the family comes in many ways including one parent cannot make medical decisions for their children, provide insurance or take advantage of savings in taxes allowed married couples, which would mean more money for the family.
The Bradacs case was on hold while the 4th Circuit Court of Appeals took up the issue of gay marriage in a case from Virginia. When the court threw out the state’s ban and the U.S. Supreme Court refused to hear the case, Childs lifted the stay.
The next case filed was from Condon and Bleckley. That was in October after the Charleston couple decided they needed to join the legal fight because their situation is similar to the Virginia case and because they hoped to speed up the process.
Their marriage license was not issued after the South Carolina Supreme Court, acting on a motion from the Attorney General, ordered all probate judges in the state to hold off issuing licenses until the federal court ruled in the Bradacs case.
As attorney for Charleston County Probate Judge Irv Condon, Nichols has asked the state Supreme Court to amend its order to probate judges.
If Gergel were to rule without the change that would put Condon in the position of having to defy the state’s high court in favor of a federal court, which by law takes precedence over a state court.
Gergel told the lawyers in a hearing by telephone last month that he wanted the state to respond specifically to how the case here differs from Virginia’s.
The inner workings of courts are largely done out of public view so it’s difficult to know precisely what is happening between the two cases behind the scenes.
Nichols said he suspects that Gergel and Childs are communicating with each other about their respective cases. The two are friends and their confirmation hearings before the U.S. Senate Judiciary Committee were held at the same time in 2010.
They also are most likely communicating with South Carolina Chief Justice Jean Toal, who both have worked with.
“It’s good to have two cases on a parallel track,” Nichols said.
They differ in that Bradacs is a recognition case while Condon is for relief.
Nichols described Gergel as thoughtful and fair-minded.
Gergel led the effort to have a statue erected honoring federal judge Waties Waring, whose 1951 dissent in a South Carolina desegregation case set the stage for the U.S. Supreme Court ruling striking down school segregation.
Two other cases came into federal court in South Carolina at about the same time, the last week of October, both brought by people suing the state Department of Motor Vehicles because the state agency won’t allow them to change their names on their driver’s license. Briefs are due in the McEldowney case on Dec. 9 and in Haas on Nov. 21.
Gov. Nikki Haley and Attorney General Alan Wilson have said they will defend the marriage ban until there is a clear ruling from the federal court. In the responses to the lawsuits, Wilson raises the legal argument that marriage licenses are the business of the states, not the federal government, and that a 4th Circuit Court of Appeals ruling overturning Virginia’s gay marriage law does not apply to South Carolina because the laws are different.
Lawyers for Condon and Bleckley have filed motions saying the laws are nearly identical.
South Carolina's marriage law was amended in 1996 to prohibit marriage between same-sex couples. In 2007, voters overwhelmingly approved adding the ban to the state constitution.
In all, 32 states and the District of Columbia have legalized same-sex marriage. Four appellate courts – 4th, 7th, 9th and 10th circuits – have struck down marriage bans, but on Thursday the 6th Circuit, which covers Michigan, Ohio, Kentucky and Tennessee, reversed district court rulings that overturned gay marriage bans.
The opposing ruling there means the U.S. Supreme Court will be called on to settle it.