Gay couples in South Carolina could get married as soon as one minute after noon on Nov. 20 under a landmark federal court decision Wednesday that overturned the state’s bans on same-sex marriage.
In a historic decision, U.S. Judge Richard Gergel of Charleston ruled that same-sex marriages are legal in South Carolina. At noon on Nov. 20 is when a stay he issued in his decision expires. He issued the stay to allow Attorney General Alan Wilson time to appeal, should he choose to do so, his written decision said.
Wilson said Wednesday afternoon he will appeal, meaning Gergel’s stay could be extended, although observers say Wilson has virtually no chance of prevailing.
Gergel overturned a 1996 state law and a 2006 state constitutional amendment and ruled that couples of the same sex have a right under the U.S. Constitution to wed in the Palmetto State.
Specifically, Gergel ordered Charleston County Probate Judge Irvin Condon to issue a marriage license to Colleen Condon (a distant relative of Irvin Condon) and Ann Bleckley when the noon Nov. 20 stay expires.
Within hours of Gergel’s decision, Wilson – who has fought for more than a year to deny gay couples the same legal rights that opposite-sex married couples have – announced he will appeal the judge’s order to the 4th Circuit Court of Appeals.
However, the 4th Circuit has already ruled clearly in a similar case, Bostic v. Virginia, that Virginia’s bans on gay marriage are a denial of equal rights and unconstitutional. More than 40 other courts as well as four Circuit Courts of Appeals have ruled such bans are unconstitutional. Circuit Courts of Appeals are one level below the U.S. Supreme Court.
Legal experts say that because of the numerous decisions overturning gay marriage bans, and the U.S. Supreme Court’s refusal to hear any appeals from losers, Wilson will lose.
“The attorney general is going to lose all around,” said Carl Tobias, a University of Richmond law professor who is a 4th Circuit expert.
Derek Black, a constitutional law professor at the University of South Carolina School of Law, said Wilson’s position is analogous to that of a football team that is “10 touchdowns behind with 10 seconds to go in the game.
“You can’t score 10 touchdowns in 10 seconds,” said Black. Wilson is simply playing a loser’s endgame, he said.
Gergel’s decision is the first ruling in a federal court in South Carolina that clearly states that S.C. state officials have no compelling interest – nor a right – to dictate to residents who they can and cannot marry.
“State laws that run contrary to constitutionally protected rights of individuals cannot be allowed to stand ...,” wrote Gergel, striking down a 2006 amendment to the state constitution that said that only marriages between a man and a woman are legal and valid as well a 1996 state law that outlawed gay marriages.
Gergel’s ruling could unleash a flood of gay people seeking to become legally married in the Palmetto State, long a bastion of anti-gay and anti-gay marriage sentiment. Some 7,214 same-sex couples live in South Carolina, according to the Williams Institute at the University of California-Los Angeles. The institute based its figures on the 2010 U.S. Census.
In a 2006 referendum, 78 percent of S.C. voters voted against allowing gay couples to have the same legal rights as traditional couples.
In his 26-page ruling, filed shortly after 9 a.m. Wednesday, Gergel quoted from the 4th Circuit Court of Appeals’ Bostic decision, saying it clearly refuted arguments made by S.C. Gov. Nikki Haley and Wilson. In that July decision, the 4th Circuit overturned a Virginia state ban on gay marriage that was similar to South Carolina’s.
In parts of his ruling Gergel appeared to scold Wilson and Haley. For example, Gergel pointed out that the 4th Circuit ruling in Bostic was the “controlling authority” and said it is a well-known fact that states that are part of a particular Appeals Court circuit are bound by that circuit’s rulings.
The 4th Circuit is an appellate court that covers Virginia, West Virginia, Maryland, North Carolina and South Carolina. South Carolina is the only state in the circuit whose officials are still trying to block gay marriages.
Wilson also misunderstood or misapplied numerous matters of apparently settled law in seeking to deny the Charleston couple the right to be issued a marriage license, Gergel wrote.
However, Gergel did dismiss Haley as a defendant in the lawsuit, saying that she, unlike Wilson, had taken no direct action to stop Condon and Bleckley from getting married.
In his press release later Wednesday stating that he intended to appeal, Wilson made no mention of the U.S. Constitution, which he is sworn to uphold even before the state constitution. Instead, Wilson said he has a “constitutional obligation ... to defend South Carolina law.”
Malissa Burnett, one of the lawyers for the Charleston couple, said, “It’s interesting that the attorney general can wear blinders and ignore the U.S. Constitution, which is the law of the land, and selectively favor the constitution of one state. This is the United States. South Carolina is trying to be a republic.”
John Nichols, the Columbia lawyer who represents Judge Condon, said his client will issue the marriage license as soon as the stay is lifted.
“Judge Condon has sworn to obey the U.S. Constitution, and in keeping with that oath, he will abide by a final ruling by the federal courts,” Nichols said.
Wilson on Wednesday also noted that the 6th Circuit Court of Appeals recently upheld state bans on gay marriage, making it possible, he said, that the U.S. Supreme Court might ultimately hear the case since now there are differences among courts of appeals.
“This office has an obligation to defend state law as long as we have a viable path to do so,” Wilson said.
On Oct. 8, Colleen Condon, a Charleston County Council member, and Bleckley applied for a marriage license at the Charleston County Probate Court and paid a filing fee. Later that day, Wilson got the S.C. Supreme Court to issue an order barring any probate judge from issuing a marriage license to a same-sex couple until the matter was settled in a federal court in South Carolina.
Charleston Probate Judge Condon had intended to issue the marriage license, but once the state Supreme Court had barred him from doing so, he could not act, Nichols said.
Although Haley was dismissed as a defendant, she clearly has agreed with Wilson that gay people should be stopped from getting married in South Carolina and gaining the same kind of legal rights opposite-sex couples have. Before Wednesday, a Haley spokesman has said she wanted to fight to protect the ban until all appeals are exhausted.
Condon and Bleckley argued they are being harmed irreparably by the state’s ban.
Wilson had made numerous arguments to Gergel about why federal courts should have no say in whom the S.C. government allows to get married. Whether a state can ban same-sex marriage is a state, not a federal, matter, he argued. Many of Wilson’s arguments had already been rejected by the 4th Circuit in the Bostic case.
Wilson also argued that state legislatures, not judges, should define who can get married in each state.
Gergel’s ruling spurned all Wilson’s arguments, especially the one that legislatures should make laws defining basic human and constitutional rights. “One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote,” Gergel wrote, quoting the Bostic decision about the country’s Bill of Rights.
The first reaction Wednesday by Columbia lawyer Vickie Eslingler, one of the winning lawyers, was, “It’s a great day in South Carolina,” a dig at Haley, who has ordered state employes to answer office telephones with that greeting.
“We are thrilled South Carolina is in the forefront of applying the law as it should be applied,” Eslingler said.
Attorneys Eslinger, Nekki Shutt and Burnette argued the case for Colleen Condon and Bleckley, on behalf of the S.C. Equality Coalition. Elizabeth Littrell, of Atlanta, is also a plaintiff’s lawyer, working on behalf of the Lambda Defense Fund.
Attorneys Robert Cook, Emory Smith and Ian Weschler, all of the S.C. Attorney General’s office, handled the case for the state.