The S.C. Supreme Court issued an order Wednesday allowing the state’s probate judges to issue marriage licenses to same-sex couples.
Minutes after the state Supreme Court’s order around 4 p.m., Richland County Probate Judge Amy McCulloch issued two marriage licenses to Columbia same-sex couples. Those couples had applied for the licenses in October, so they had already waited more than the 24 hours required by law.
“I interpret the Supreme Court’s lifting of the stay as a green light to go forward and issue licenses that are pending,” McCulloch said. “I respect other judges who’ve decided to wait, but I’ve decided to move forward.”
One probate judge who will refuse to issue same-sex marriage licenses is Lexington County’s Dan Eckstrom.
“Until the conflicts are resolved – including the appeal by South Carolina (before the U.S. Supreme Court) – I intend to follow our state constitution and s
tatutes,” Eckstrom said.
Those laws ban same-sex marriages and state recognition of such marriages, but two separate S.C. federal judges recently ruled they violate the U.S. Constitution, which is a higher legal authority than state law.
Eckstrom said any same-sex couple appearing at his office seeking a marriage license will be “politely told, at this time, ‘no.’”
Currently, S.C. Attorney General Alan Wilson has an appeal pending before the U.S. Supreme Court to extend a stay issued last week by U.S. Judge Richard Gergel of Charleston. In a case filed by a Charleston couple, Gergel found state bans on same-sex marriage unconstitutional and ruled that a Charleston probate judge could issue a marriage license to a lesbian couple. However, Gergel gave Wilson until noon Thursday to get an extension of his stay.
A three-judge panel of the 4th Circuit Court of Appeals on Tuesday denied Wilson’s request to extend the stay, which meant Gergel’s decision would stand. Legal experts say Wilson doesn’t have much of a chance in his appeal, filed Tuesday night, to the U.S. Supreme Court.
Wilson is basing part of his appeal on a Nov. 6 ruling by the 6th Circuit Court of Appeals in Ohio. It ruled 2-1 that states, not the federal government, have the right to set rules on marriage. Four other courts of appeal, including the 4th Circuit, have ruled against state bans on gay marriage.
A decision by the U.S. Supreme Court could come anytime Thursday morning. Or the court could do nothing, which also would be a decision.
Besides Gergel, U.S. Judge Michelle Childs of Columbia ruled Tuesday that South Carolina’s anti-same-sex marriage laws violate the U.S. Constitution.
The 4th Circuit’s order was followed Wednesday afternoon by an order signed by four of South Carolina’s five justices – Chief Justice Jean Toal and associate justices Costa Pleicones, Donald Beatty and Kaye Hearn. John Kittredge did not participate; no reason was given.
The state Supreme Court order cited an Oct. 9 injunction issued by the court that barred the state’s probate judges from issuing marriage licenses to same-sex couples until a decision was reached in the same-sex marriage case before Childs.
That case was brought by a Lexington County couple, Highway Patrol Trooper Katherine Bradacs and Tracie Goodwin, who sought to have South Carolina recognize their legal 2012 marriage in the District of Columbia.
“A decision by Judge Childs (on Tuesday) resolving the Bradacs case having been rendered, we hereby lift the injunction issued in our order of October 9, 2014,” the court’s Wednesday order said.
The state Supreme Court’s directive ended a day of confusion over whether state probate judges could begin issuing marriage licenses to same-sex couples
Earlier Wednesday, Charleston County Probate Judge Irvin Condon began issuing marriage licenses to gay couples. He issued six, and one couple, Kristin Anderson and Kayla Bennett, immediately got married outside the office.
But Condon stopped issuing licenses after getting a directive to stop from the S.C. Court Administration.
Court Administration director Rosalyn Frierson sent an email to all probate judges requesting that they not issue any marriage licenses until either hearing from the U.S. Supreme Court or until a stay on same-sex marriage licenses issued last week byGergel in the Charleston case is lifted at 12:01 p.m. Thursday.
Condon had acted on the advice of his lawyer, John Nichols, of Columbia, who said he could go ahead and issue marriage licenses.
But after news accounts Wednesday of Condon’s action, Frierson – almost certainly acting under the direction of one or more of the state Supreme Court justices – emailed all state probate justices and directed them not to issue licenses, at least for the time being. The S.C. Supreme Court has issued no formal statement on the matter.
Nichols said that after he learned about Frierson’s email, he advised Condon to stop.
McCulloch also obeyed Frierson’s directive, saying: “I don’t want the status of a couple’s marriage to be challenged based on the timing of when they got married. I know people are frustrated with that – they think the issue is resolved. I share that frustration, but I think we let this play out a few steps more. I’m hoping it will be very quick.”
It was quick. Later Wednesday, the state Supreme Court lifted its stay.
“We are happy to see the order out of the state Supreme Court because it reaffirms our understanding of their Oct. 9 order,” Nichols said late Wednesday.
Couples who apply for licenses still have to wait 24 hours to have them issued. They can marry anytime after that.
Meanwhile, Reformation Lutheran Church sent out a notice that it had revised its wedding policy to include same-gender couples who want to marry in its church, located in Columbia’s Earlewood Park neighborhood.
“The decision to lift the ban on same-gender marriages in our state is long overdue,” said Tim Bupp, pastor of Reformation Lutheran Church. “It’s a move in the right direction and supports our congregation’s commitment to all of God’s children.”
As for the Charleston couple involved in the Gergel case, Charleston County Councilwoman Colleen Condon and her partner, Nichols Bleckley – they were the first couple to pick up a license in Charleston and are planning a wedding.