Same-sex marriage will be legal in South Carolina on Thursday afternoon unless the U.S. Supreme Court steps in to stop it.
On Tuesday, a three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously turned down S.C. Attorney General Alan Wilson’s request to extend the Thursday noon deadline imposed by U.S. Judge Richard Gergel of Charleston. Gergel last week ruled that gay couples could get married in South Carolina under the provisions of the U.S. Constitution, but he imposed the Thursday deadline to give Wilson a chance to appeal.
Wilson did. He lost. But he said he immediately will ask the U.S. Supreme Court to get involved.
In a separate decision Tuesday, U.S. Judge Michelle Childs of Columbia upheld a Lexington County lesbian couple’s bid to get legal recognition from the state of South Carolina for their out-of-state marriage.
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The couple, Katherine Bradacs and Tracie Goodwin, were legally married in the District of Columbia in 2012. They have three children, and their lawsuit alleged their children were adversely affected by South Carolina not acknowledging they are legally married.
A Wilson spokesman said the attorney general is reviewing Childs’ decision in the Lexington case.
In the Charleston case, the three-judge panel issued a terse, two-page ruling, denying Wilson’s bid for more time to argue his case that a probate judge in Charleston should not issue a marriage license to Colleen Condon and Ann Bleckley. Gergel said a 4th Circuit ruling in July allows the probate judge to issue the license and said he could – after the stay of his decision is lifted at one minute after noon on Thursday.
Gay couples who want to get married – no one knows how many that would be – and apply for a license on Thursday would have to wait 24 hours for it to be issued, just as any other couple would.
However, Condon and Bleckley, who brought the lawsuit in Gergel’s court, had already applied for a marriage license and paid an application fee. Theoretically, they could get married by as early as Thursday, if Gergel’s stay expires at noon on that day.
Neither Childs’ nor Gergel’s ruling would compel any church to marry same sex-sex couples. Instead, both judges said for legal purposes, the state of South Carolina must grant the same legal rights and benefits to married gay couples as the state grants to married opposite sex couples.
In the Lexington case, Judge Childs ruled that an anti-gay marriage amendment to the state Constitution and a state law banning recognition of same-sex marriage violate the U.S. Constitution.
Specfically, South Carolina’s laws violate Bradacs’ and Goodwin’s right to equal protection under law and due process, Childs ruled.
Childs’ ruling means that two South Carolina federal district judges – she and Gergel – have now ruled definitively against Wilson, who was arguing that South Carolina’s Constitution had more legal authority than the U.S. Constitution when it came to recognition of same-sex marriages. Wilson also argued that each state should be able to define what marriage is. South Carolina law has defined marriage as a legal union between a man and a woman.
On the 4th Circuit panel that ruled against Wilson on Tuesday were three federal judges who had not yet weighed in on the same-sex marriage issue – Judge William Traxler Jr. of South Carolina, Judge Diana Motz of Maryland and Judge Stephanie Thacker of West Virginia.
In July, another 4th Circuit three-judge panel voted 2-1 to overturn a Virginia ban on same-sex marriage. The prevailing judges on that panel were Henry Floyd of South Carolina and Roger Gregory of Virginia. The losing judge was Paul Niemeyer of Maryland.
In their rulings, both Childs and Gergel made clear their findings that legally married gay couples should have the same rights as legally married opposite sex couples. Those rights include income tax exemptions, inheritance and hospital visitation rights and job benefit rights, to cite a few, according to pleadings in the Lexington and Charleston cases.
Bradacs and Goodwin filed their lawsuit in August 2013, seeking to force the state to recognize their District of Columbia marriage. They were the first South Carolina gay couple to file such a lawsuit. At the time, fewer than 20 states recognized gay marriages and the wave of more than 40 federal court decisions overturning gay marriage bans was not yet in full force.
Bradacs is a trooper in the S.C. Highway Patrol, and their lawsuit specifically refers to the hardships faced by Goodwin and other similarly situated spouses whose marriages are legal in other states but not in South Carolina.
“Lesbian and gay police officers, firefighters and other first responders are denied the peace of mind of knowing that if they make the ultimate sacrifice, their partner will be taken care of through the financial support available to help those who lost their spouses in service to the community,” the lawsuit says.
“We represent two of the most courageous people – Katie and Tracie – that I know,” said attorney John Nichols, who with Columbia lawyer Carrie Warner filed the Bradacs-Goodwin lawsuit in 2013.
“This is a very proud moment for John and me, to be a part of a case this huge,” Warner said. “These girls stuck their necks out when nobody else was willing to do it.”
In their August 2013 lawsuit, Bradacs and Goodwin cited a 5-4 June 2013 decision by the U.S. Supreme Court that struck down part of the federal Defense of Marriage Act that recognized state-sanctioned, same-sex marriages but treated them differently from state-sanctioned, opposite-sex marriages.
In 2006, S.C. voters approved an amendment to the state Constitution banning same-sex marriage, 78 percent to 22 percent. Some 829,360 people voted to approve the amendment; 234,316 voted against it.
Condon and Bleckley filed their Charleston lawsuit in early October after the U.S. Supreme Court declined to review U.S. decisions by four U.S. courts of appeals – including the 4th Circuit – that overturned gay marriage bans.
Malissa Burnette of Columbia, one of the three Columbia lawyers for Condon and Bleckley, said late Tuesday that, “We are one step closer now, and we are going to fight every step of the way every one of the state’s delaying tactics.”
In a statement late Tuesday, Wilson said, “This issue has not yet been resolved nationally. It is still likely the U.S. Supreme Court will address conflicting rulings between federal circuit courts of appeal.
“Therefore, today’s ruling by the 4th Circuit does not end the constitutional obligation of this office to defend S.C. law,” Wilson said.
Wilson was referring to a decision earlier this month by the 6th U.S. Circuit Court of Appeals, which ran counter to other U.S. circuit appeals courts.
Gov. Nikki Haley was originally named in both the Charleston and Lexington lawsuits as a defendant along with Wilson. Although Haley has said she agreed with Wilson, both judges dropped her as a defendant because she had not played any active role in trying to stop gays from being married, as has Wilson.