Gov. Nikki Haley and Attorney General Alan Wilson on Friday afternoon filed yet another motion to stop two Charleston women from getting married.
The motion cites a Thursday 2-1 decision by a three-judge panel of the U.S. Court of Appeals’ 6th Circuit, which on Thursday upheld bans on same-sex marriage in four Midwest states.
That decision was the first of five Courts of Appeals decisions to uphold a gay marriage ban and also sets the issue on an almost certain path to the U.S. Supreme Court, which up to now has declined to take up the matter of whether it is constitutional for state governments to ban same-sex marriage.
Same-sex marriage is now legal in some 32 states and against the law in 18 states, including South Carolina.
In the Charleston case, U.S. Judge Richard Gergel signaled Oct. 24 in a hearing with lawyers for all sides that he might deliver a speedy ruling. But the latest filing by Wilson and Haley, with its citation of the 6th Circuit ruling, means Gergel might need extra time to study that opinion before issuing his own decision.
The case before Gergel involves two Charleston County women, Colleen Condon and Anne Bleckley, who had paid a fee and applied for a marriage license Oct. 8 at the Charleston County probate court. The next day, that court refused to issue a marriage license, citing South Carolina’s ban on same-sex marriage. On Oct. 15, the couple filed suit against Haley, Wilson and Probate Judge Irvin Condon (a distant relative of Colleen Condon).
In their filing, Haley and Wilson argued that state governments – and not the federal government – should determine who can get married in each state.
“The definition of marriage has always been the prerogative of the States to determine,” Haley's and Wilson’s motion said, noting the 6th Circuit also stressed that line of reasoning.
Also, “as a matter of comity,” Gergel should decline to rule in the Charleston County case because Michelle Childs, another South Carolina federal judge, already has a same-sex marriage case before her. “Comity” is a legal term meaning that Gergel should defer to any ruling Childs first might make in her already-existing case.
The case before Childs was filed in August 2013. Until recently, Childs has shown no great urgency in setting deadlines for the parties to file briefs so she could make a ruling. It isn’t clear when she might rule.
Lawyers for Condon and Bleckley have said in pleadings their case is different from the one before Childs.
Childs is being asked to rule whether the state of South Carolina must recognize the marriage of Katherine Bradacs and Tracie Goodwin, a Lexington County couple who were legally married in the District of Columbia in 2012.
In both lawsuits, the gay couples say South Carolina’s law defining marriage as the traditional union of one man and one woman deprives them of the kind of rights and privileges that heterosexual couples have, from state tax exemptions to hospital visitations.
In their filings, Condon and Bleckley say they they are entitled to “swift justice” because their basic constitutional rights have been violated.