In her first ruling since lifting a stay on a case challenging South Carolina’s gay marriage ban, U.S. District Judge J. Michelle Childs signaled she will consider only whether the state must recognize marriages performed in other states.
But John Nichols, a lawyer for the plaintiffs in that case, said Tuesday the judge would have to consider whether South Carolina’s law is unconstitutional.
Childs is presiding over a case in which two women are seeking to have their marriage in Washington, D.C., recognized in South Carolina. Childs also ruled that the case brought by Katherine Bradacs and Tracie Goodwin should go forward against the state attorney general, but dismissed Gov. Nikki Haley as a defendant.
Childs didn’t rule on the merits, but instead said she would do that when she considers a motion from Bradacs and Goodwin seeking summary judgment. That is a legal avenue by which a judge rules on an issue without holding a trial.
Childs also noted that the 4th Circuit ruling overturning bans on gay marriage controls what she decides here.
On Monday, Attorney General Alan Wilson filed a motion asking the court to issue a stay if the decision is to allow gay marriage. He also filed a motion taking note of a ruling in the 6th Circuit Court of Appeals, which includes Kentucky, Michigan, Ohio, and Tennessee, that overturned lower-court rulings in favor of gay marriage.
Also considering the question is U.S. District Judge Richard Mark Gergel of Charleston. He is presiding over a case brought by Colleen Condon and Nichols Bleckley, who were allowed to apply for a marriage license by a probate judge but the judge was stopped from issuing it by the South Carolina Supreme Court.
“We’re glad we were able to get this on file quickly,” said Elizabeth Littrell, an attorney with Lambda Legal and one of the lawyers on the Condon case. She said they were concerned Child ruling might apply only to couples legally married elsewhere.
At the center of the issue in South Carolina is a ruling by the 4th Circuit Court of Appeals this summer that found Virginia’s ban on gay marriage unconstitutional. South Carolina is the last state in the 4th Circuit to have a law banning gay marriage.
Gay marriage became legal in Maryland in January 2012 by a law passed by the General Assembly and in a referendum approved by voters.
The other 4th Circuit states – 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.
“South Carolina is last,” Littrell said. “It’s unfortunate. The taxpayers are footing the bill for what is almost certainly a losing battle.”
Typically whoever loses a civil rights case pays the attorney fees for the other side.
The Bradacs case was filed in August 2013. Bradacs and Goodwin of Lexington County were married in 2012.
Condon and Bleckley filed their lawsuit in October. They felt 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.
Also pending before Childs are two cases 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.
Wilson has said he will defend the marriage law 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.
All the paperwork in Condon’s request for a preliminary injunction is on file, meaning Gergel could rule at any time. Also pending before Gergel is a motion for summary judgment. The next deadline for the plaintiff to file on that motion is in 10 days.